Custody

First and foremost, at least one of the parents of the child is entitled to custody.¹ Parents are assumed to both be equally entitled to custody unless one of the parents is dead, doesn’t want custody, is unable to get custody, or has abandoned the child – then, the other parent is entitled to custody. The immigration status, sexual orientation, gender identity, gender expression, or sex of a parent, legal guardian, or relative cannot disqualify someone from getting custody.²

In some situations, the judge will grant custody to someone other than the parent; for example, if the child has been living in the home of someone other than his/her parents, that person may be able to get custody.³ However, the judge will not do this often - only when there is clear evidence that letting either parent have custody would be harmful to the child. It does not have to be specifically proven that the parents are “unfit.”⁴

If the court finds that the minor parent is unable to understand the nature of the proceedings or to assist counsel in preparing the case, the court shall, upon its own motion or upon a motion by the minor parent or the minor parent’s counsel, appoint a guardian ad litem.

¹ Ann.Cal.Fam.Code § 3010(a)
² Ann.Cal.Fam.Code §§ 3010(b); 3040(b), (c)
³ Ann.Cal.Fam.Code § 3040(a)(2), (a)(3)
⁴ Ann.Cal.Fam.Code § 3041(a)-(d)

If you move out of the family residence, the judge will not consider this as a factor when deciding custody or visitation if:

• you left to escape domestic violence or the threat of domestic violence by the other parent; or
• the absence is brief and during the absence you have shown an interest in maintaining regular contact with the child and show no intention of abandoning him/her. If you tried to keep in contact with your child but couldn’t because the other parent interfered, this will also be considered by the judge.¹

¹ Cal.Fam.Code § 3046(a), (b)

A parent cannot get physical custody, legal custody, or unsupervised visitation if:

• s/he is required to be registered as a sex offender and the victim of the sex crime is a minor; or
• the parent lives with someone who is required to be registered as a sex offender due to a felony conviction in which the victim was a minor.¹  

The only exception is if the judge specifically determines that there is no significant risk to the child if the parent were able to have custody or unsupervised visitation.¹

¹ Cal.Fam.Code § 3030(a)(1), (a)(2)

If a parent or non-parent who is seeking custody has committed domestic violence against any of the following people within the last five years, the judge will assume that it is not in the best interest of the child to give that parent or non-parent joint or sole custody:

• the other parent;
• the child;
• the child’s sibling;
• any child to whom the person is related by blood or affinity;
• any child who the person took care of for any amount of time;
• the person’s own parent, current spouse, or cohabitant; or
• someone with whom the person has a dating or engagement relationship.¹

However, that does not mean that the judge will never give that parent custody. After considering the following factors, the judge can decide to go against the regular assumption that the parent who committed violence should not get custody of the child. The factors that the judge will consider are whether or not the abusive parent or other person seeking custody:

• has shown that giving him/her sole or joint custody is in the best interest of the child;
• has successfully finished a batterer’s treatment program;
• has successfully finished alcohol or drug abuse counseling if the judge ordered him/her to do so;
• has successfully finished a parenting class if the judge ordered him/her to do so;
• is on probation or parole and, if so, whether s/he has followed all the terms of the probation or parole;
• has a protective order against him/her and, if so, whether s/he has followed the directions in the order;
• has committed any further acts of domestic violence; or
• has a domestic violence restraining order issued against him/her but is still in possession or control of a firearm or ammunition in violation of the law.²

The judge cannot consider, however, the general preference in the law for frequent and continuing contact with both parents.²

Note: If you are / were a victim of domestic violence and you believe that your California custody / visitation order puts your child in a dangerous situation with the other parent, you may want to contact the Family Violence Appellate Project. They work with low-income survivors of abuse in California who want to appeal a court order or who are defending against an appeal filed by the other parent and who cannot afford to hire an attorney.

¹ Cal. Fam. Code §§ 3044(a); 3011(a)(2)(A)
² Cal. Fam. Code § 3044(b)