If you're splitting up with your child's other parent, you'll have to deal with the questions of where the child will live most of the time, how much time the other parent will have with the child, and who has the right to make important decisions about the child's upbringing. Even if you were divorced years ago, you might need to change your current parenting arrangements. Read on to learn how California law deals with these issues.
The first thing to know about custody in California is that both parents have an equal right to custody under the law. (Cal. Fam. Code § 3010(a) (2023).)
There are two types of custody in California: "legal custody" and "physical custody". With each type, parents may have "joint custody," or one parent may have "sole custody."
Legal custody concerns parents' rights to make the important decisions in a child's life on issues like education, medical treatment, and religious upbringing. When a parent has sole legal custody, that means the parent may make those decisions unilaterally, without getting the other parent's consent. When parents have joint legal custody, they both have a right to be involved in the decision-making process.
Joint legal custody is by far the preferred outcome in custody cases, because it enhances the active participation of both parents in the child's life. But it can lead to conflict if the parents disagree. In order to avoid confusion about parental rights in joint custody situations, California law requires judges to spell out the specific circumstances when both parents must consent to a decision—and the consequences if one of them fails to do that. In all other situations, either parent can make decisions on their own. (Cal. Fam. Code § 3083 (2023).)
For example, the judge might order that both parents must be involved in deciding which school children will attend or which religion they'll be raised in. But the judge might leave some of the details open—such as exactly when and where the child will attend religious services. That way, the parent who has the child at the time can decide those details.
Physical custody refers to where a child lives. It also involves parents' responsibility for the routine daily care and control of their children, such as bathing, disciplining, or preparing meals.
When a parent has sole physical custody, the child lives with that parent (the custodial parent), while the noncustodial parent will usually have visitation time (more on that below).
When parents have joint physical custody, the child will spend a significant amount of time living with each them—but not necessarily an exactly equal amount of time. As a practical matter, joint physical custody works best when the parents live close to each other. This tends to reduce problems such as where the child attends school and participation in sports or other after-school activities.
Even when parents have joint legal custody, that doesn't mean they're automatically entitled to joint physical custody. However, when both parents agree to joint legal and physical custody, California judges will presume that it's in the child's best interests. (Cal. Fam. Code §§ 3002, 3080, 3085 (2023).)
Even if the parents don't agree on the issue, the judge may still award joint custody if one parents requests it. To help make that decision, a judge may order a custody investigation to evaluate whether joint custody would be in the child's best interests. (Cal. Fam. Code § 3081 (2023).)
Parents always have the option of agreeing between themselves on how they'll handle child custody and visitation. But in order to have the agreement made part of a court order, they'll need to spell out the details in a written "parenting plan" (sometimes called a "custody and visitation plan" or "custody schedule"), sign it, and submit it to the court. Judges will generally approve these agreements as long as they appear to be in the child's best interests.
When parents can't reach an agreement on custody or visitation, a judge will have to resolve their dispute. Whenever a judge is making a custody decision, the priority has to be the best interests of the child. When deciding what's best for a child, California law requires judges to consider all relevant circumstances, including:
(Cal. Fam. Code §§ 3011, 3046 (2023).)
California law explicitly prohibits judges from considering a parent's sex, gender identity, gender expression, or sexual orientation when they're deciding which custody arrangements would be in the children's best interests. (Cal. Fam. Code § 3011(b) (2023).)
Also, a parent's immigration status won't disqualify that parent from obtaining custody. (Cal. Fam. Code § 3040(b) (2023).)
Under California law, a judge may find that a child has more than two parents if recognizing only two parents would be detrimental for the child. (Cal. Fam. Code 7612(c) (2013).)
Here are a couple of examples of how this might work:
Once a judge has recognized that a child has more than two parents, the child's best interests will be the controlling factor when the judge allocates custody and visitation between the parents. Among other factors, the judge will need to take into account the child's need for continuity and stability, by maintaining the patterns of care and emotional bonds that have been established between the child and the parents. (Cal. Fam. Code § 3040 f) (2023).)
Under California law, if a child is mature enough to form an intelligent preference as to custody and visitation, the judge must consider and give "due weight" to the child's wishes.
When it wouldn't be appropriate for children to testify in court as witnesses, judges must work out another way to get the kids' input—often by speaking with them in the judge's chambers. Either way, parents ordinarily shouldn't be present while their child is expressing a custody preference, unless the judge has specifically found that their presence wouldn't be detrimental to the child's well-being. (Cal. Fam. Code § 3042 (2023).)
Judges may also appoint someone (such as a social worker) to serve as a "guardian ad litem" to advocate for the child and report to the court about the child's preferences. Sometimes, particularly in very contentious cases, judges may decide that children need their own attorney to protect their interests.
California, like many other states, has a specific public policy of ensuring that when parents split up, their children have "frequent and continuing contact" with both parents. Toward that end, state law requires that noncustodial parents receive visitation rights as long as that would be in the children's best interests. (Cal. Fam. Code §§ 3020(b), 3100(a) (2023).)
Courts try to set up visitation schedules that will ensure the noncustodial parent and the child will have enough time together to maintain their relationship. A common setup may include overnight visits on alternating weekends, splitting holidays and school vacations between the parents, and extended visitation during the summer. But there are any number of variations. Ideally, parents will work together to create a schedule that best suits their circumstances and the child's needs, rather than leave that decision to a judge.
In order to avoid potential problems, the more specific the visitation schedule the better. So these plans typically allocate transportation duties and include pick-up and drop-off locations and times.
If a domestic violence protective order has been issued against a noncustodial parent, the judge must consider whether it would be in the child's best interests to:
(Cal. Fam. Code § 3100(b) (2023).)
With supervised visitation, the court appoints someone (typically a social worker or other trained individual) to oversee the visitation session, which is often conducted in a court-approved facility. The supervisor's job is to watch and listen, without interacting with the parent or child unless necessary to ensure that the child is comfortable and safe.
Sometimes the court will put additional safeguards in place. For example, if a judge grants supervised visitation to a noncustodial parent with a history of alcohol abuse, that parent may be required to abstain from consuming alcohol for a period of time prior to the visits.
California, like almost all other states, has a set of laws governing when the state's courts have jurisdiction (legal authority) to issue orders affecting child custody. Under these laws, known as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), California courts generally have jurisdiction to issue custody orders for children who have lived in the state with a parent (or someone acting as a parent) for at least six months just before the beginning of the divorce or other custody case. (Cal. Fam. Law §§ 3402, 3421 (2023).)
The rules in UCCJEA are complicated, and there are many exceptions to the basic rules. In general, once courts in California (or any other state that has enacted the UCCJEA) have issued custody orders, they continue to have exclusive jurisdiction over that child's custody, unless certain circumstances have changed—such as when both parents and the child no longer live in the state. That means that a California judge may not modify a custody order from another state unless the strict requirements for changing jurisdiction have been met. (Cal. Fam. Law §§ 3422, 3423 (2023).)
The UCCJEA includes a provision for what's known as "temporary emergency jurisdiction." Typically, this allows a state's courts to issue orders concerning custody of a child who's in the state at the moment and has been abandoned or needs emergency protection from actual or threatened abuse or mistreatment—even if the child doesn't live in that state with a parent. California's version of this provision adds that the state's courts may also issue emergency custody orders if a child who's currently in the state hasn't been able to get gender-affirming health care or mental health care. (Cal. Fam. Law § 3424 (2023).)
If there are existing custody orders in the child's home state, judges in both states are supposed to confer with each other on how best to protect the child and how long the emergency orders will remain in effect.
The evolving needs of parents or children—especially as kids get older—may prompt parents to seek changes to the parenting plan. For instance, a teenager may have a good reason to want to live with the noncustodial parent, such as intractable conflicts with the custodial parent's new spouse and children. Or a parent's work schedule might have changed, making it difficult or impossible to be available under the current visitation schedule.
But you aren't allowed to simply change the parenting schedule on your own or withhold visitation. Otherwise, the other parent may ask the court to enforce the existing custody order, and you could face serious consequences including contempt charges or losing custody.
If you want to make changes to a current custody order in California, you must file a motion (written legal request) seeking a modification. As with an original custody order, you and the other parent may agree on a change, but you'll need to submit your written agreement for a judge's approval.
Without an agreement, a judge will have to decide whether to grant the modification. California courts have long held that in order to succeed with a request to change a child's custody, you must prove that there's been a substantial change in circumstances since the most recent custody order was issued, and that the proposed modification would be in the child's best interests. (In re Marriage of Carney, 24 Cal.3d 725 (Cal. 1979); Speelman v. Superior Court (Speelman) 152 Cal.App.3d 124, (Cal. Ct. App. 1984).)
Some California courts have held that when the parents have joint physical custody, the changed-circumstances requirement might not apply when one of them is requesting a modification only in the parenting schedule, not in the child's primary residence. But the requesting parent would still need to show that modification would be in the child's best interests. (Enrique M. v. Angelina V. (Enrique I) 121 Cal.App.4th 1371 (Cal. Ct. App. 2004).)
Note that California courts have set out specific rules when judges are considering whether to grant a custody modification when the custodial parent plans to move away with the child.
Custody and parenting time are obviously very serious issues. Because most lay people are unfamiliar with California's laws and court procedures, having to deal with them can add more anxiety and tension to an already emotionally charged situation. And remember, it's not just the parents who are feeling the strain of a custody battle. The children are impacted as well, often more deeply than some people may realize.
It's always best if you and the other parent can resolve your disagreements without a court battle, either on your own or in custody mediation. But if that's simply not possible, it may well be in your best interest to at least speak with a knowledgeable family law attorney who can explain your rights and responsibilities, and the best way to move forward.