Custody in California

Where does the Orange County Family Court Start in Its Determination of Custody?

In California, both paretns are equally entitled to custody ( California Family Code Section 3010 ). This means that the courts do not favor one parent over the other parent.  In fact, there is a presumption that joint custody is in the best interest of the minor child when the parents agree to joint custody ( California Family Code Section 3080 ).

By law if one parent is unable to have custody, the other parent is entitled to custody. This type of situation may arise if one parent is incapacitated or passes away.
California Family Code Section 3011 requires the family court to look at the best interests of the minor child to determine which parent will have custody. There are several factors the court examines in determining the best interest of the minor child:  (1) the health, safety, and welfare of the child; (2) any history of abuse by one parent; (3) the nature and amount of contact with both parents; (4) and the habitual and continued use or abuse of controlled substances or alcohol.

Minor Children and Custody


When deciding custody, the court can consider different factors. A family law judge may consider the habitual and continued drug use by either parent. If the drug use will put the minor child in jeopardy, the court will make custody awards accordingly.

The court can also examine any history of domestic violence and determine whether it should preclude one parent from having custody. It will consider the history of abuse by one parent against others including family members and cohabitants. If the abuse continues in the child's home, the court can declare that custody with that parent is detrimental to a child.

Both domestic violence and drug use require independent corroboration from drug enforcement agencies, courts, probations, offices, medical facilities, or other public agents. 

Custody is Gender Neutral

The Court Favors the Best Interest of the Minor Child

Infant Visitation is Usually for More Frequent Shorter Periods

The Court Encourages Siblings to Stay Together

Joint legal custody means that both parents have the right and responsibility to make decisions in respect to the health, education, and welfare of a child.  Family Code Section 3003 .

Sole legal custody occurs when only one parent has the right and responsibility to make decisions affecting health, education and welfare of a child.  Family Code Section 3006 .

A court can grant joint legal custody without granting joint physical custody. Family Code Section 3085 .
Joint physical custody is when both parents have significant periods of physical custody. It ensures that each parent has frequent and continuing contact with both parents.  Family Code Section 3004 .

When the family court orders sole physical custody the minor child lives primarily with one parent, subject to the power of the court to order visitation to the other parent.  Family Code Section 3007 .
Custody is granted in the following order of preference:

  • To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. 
  • If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
  • To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody
The statutes for custody do  not have a preference or a presumption for or against joint legal custody, joint physical custody, or sole custody. Instead it allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.

When it is established by law that a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child The family court shall address the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020 Family Code Section 3040
In some circumstances, custody can be granted to someone other than the parent.  In this situation, the family law judge must find by clear and convincing evidence that parental custody would be detrimental to the child. If the court makes a finding that custody with a parent would be detrimental, it should not be found in the pleadings--see California Family Code Section 3041 .
The finding of detriment can include the harm of removing a child from a stable environment where a person has assumed--on a daily basis--the role of parent.  In this situation, there is no need to a finding of unfitness of the parents. The court must find by a preponderance of the evidence that it is in the best interest of the minor child to grant custody to a the third party. 
Required Evidence
The family court must find that there is habitual, frequent or continual illegal use of a controlled substance, before it can make an order for drug testing.
Alcohol Use
The family court may prohibit the consumption of alcohol by either parent while that parent is caring for the minor child.
Testing for Illegal Substances
Any tests results are confidential and will only be released to the court, the parties, and their attornies.
The court can require anyone seeking custody to undergo testing for illegal substances ( California Family Code Section 3041.5).  The court shall use the least intrusive method available.

Child's Custody Wishes

The child must be of sufficent age and capacity to reason.

The court can consider the minor's wishes as it relates to custody. A minor child who is 14 years of age or older and would like to talk to the court about custody or visitation shall be allowed to do so unless the court finds that it it is not in the best interest to do so. Although a child that is less than 14 years of age can also address the court, the court must determine if it is an appropriate circumstance to allow the minor child to act.

Minor's counsel, an evaluator, an investigator, or a mediator can assist the judge in the determination of whether to allow a minor child who wishes to address the court to speak about custody and visitation. 

If the court does not allow a minor child to speak, the court shall provide an aternate means of obtaining input from the child. 

California Family Code Section 3041 does not require minor children to speak to a judge about custody and visitation.
If a court finds that one parent has perpetrated domestic violence against the other parent  or the child within the previous five years, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who had commited domestic violence is detrimental to the best interest of the child.

A prepretrator can overcome the presumption upon a showing of several factors:
  • if there is a showing that giving the minor child to the perpretator is in the best interet of the child;
  • proof that the perpetrator has completed a batterer's treatment program;
  • proof that the perpetrator has completed an alcohol or drug abuse counseling program;
  • proof that the perpetrator has completed a parenting class;
  • whether the perpetrator is on probation or parole.

Domestic Violence and Custody

The Family Court Can Make Reasonable Orders to Prevent
Either Party From Abducting the Minor Child

A judge can take reasonable steps to insure that a minor child is not abducted from the state of California.
A judge can make orders to prevent abduction of a child if there is a risk of abduction based upon the following:
  • one parent has previously taken a child in violation of the custody rights of the other parent;
  • one parent has threatened to take the child from Orange County;
  • the threatening parent lacks strong ties to California;
  • the threatening parent has strong ties to another state;
  • the threatening parent has no financial reason to stay in Orange County;
  • the threatening parent is engaged in planning activities that faciliate the removal of the child from the state;
  • the threatening parent has a history of lack of parental cooperation; or
  • the parent has a criminal history. 
Once a court finds the there is a threat of removal of a child from Orange County, the court can require any of the following:
  • supervised visitation;
  • posting of a bond sufficient to serve as a financial deterrent;
  • restrict the right of the threatening parent to remove the child;
  • restrict the right of the threatening parent to relocate;
  • require the surrender of the passports;
  • prohibit the parents from applying for a new passport;
  • require the parent to notify a relevant foreign consulate of passport restrictions and provide proof of that notice;
  • require a traveling parent to register in another state before traveling to that state;
  • provide provisions in the order that comply with UCCJEA or Hague Convention so that California is listed as the child's home state; or
  • use law enforcement.
The court may allow the minor child to travel with another parent outside of the United States. The court can approve the travel if the traveling parent provides the following:
  • the travel itinerary of the child;
  • copies of round trip tickets;
  • a list of addresses and telephone numbers where the child can be reached at all times; and
  • an open airline ticket for the non-traveling parent.

California Family Code Section 3048 .