Custody, Visitation, and Travel
This part of the guide explains who can make important decisions for the child, including
• who the child lives with,
• who decides about the child’s school, religion, and health care,
• when the other parent can be with the child, and
• who can travel with the child.
Even if you are under 18, you have the same right to care for your child as an adult.
What does “custody” mean?
Custody means caring for and being responsible for another person.
There are two kinds of child custody:
- Physical custody: Who the child lives with. When the child spends significant time at both parents’ homes, they have joint physical custody. If the child lives with one parent, that parent has sole physical custody.
- Legal custody: Who makes decisions about a child’s health, education, and welfare. For example, who chooses the child’s school, doctors, or religion. When both parents have the right to make these decisions, they have joint legal custody. When just one parent does, that parent has sole legal custody.
Which parent usually gets custody?
In California, parents have equal rights to custody. Courts (and mental health professionals) believe it is usually best for children to spend time with both parents to develop a relationship with each parent.
What if my child would not be safe with the other parent?
Above all, the court wants children to be safe. If you can show that your child may not be safe with the other parent, the court will probably not give custody to that parent. For example, the court will probably not give custody to a parent who
- has been violent,
- has a criminal record,
- abuses drugs or alcohol,
- has abused the child or other children,
- has abused the other parent within the last five years, or
- does not come to court when ordered.
Will the other parent be able to see the child if s/he does not have custody?
Yes. The other parent can spend time with the child. This is called visitation.
In most cases, the parents work together or with a mediator to make a visitation schedule.
What if the other parent does not want custody?
If the other parent agrees to it, the court will give you sole custody.
Do I need a lawyer to help me with custody?
No. But you can hire a lawyer, if you want to. It will not be easy to get a lawyer to help you for free, but some legal-aid offices may help you.
A lawyer can give you advice about custody and different kinds of parenting plans. You can also learn how to get a custody order at www.courts.ca.gov/selfhelp.htm.
Can my parents (or another adult) get custody of my child?
Usually not. As long as you care for your child, only you and the other parent have the right to custody of your child, even if you are under 18 and still living with your parents. It is up to you how you raise your child. Your parents do not have the right to make those decisions for you.
For more information on your parents’ rights, see Grandparents.
You may feel nervous about going to court.
To learn about how to get ready, see Going to Court.
Who decides about child custody?
The court wants you and the other parent to agree about custody and make a parenting plan on your own. A parenting plan is a good idea even if your relationship is going well. If your plan is reasonable, the court will probably approve it.
What if we cannot agree on a parenting plan?
If you cannot agree, ask the court to order a parenting plan that is best for your child. The court will send you to a mediator. A mediator is an independent professional who helps parents make a plan that is good for their children.
What if we cannot agree, even with a mediator’s help?
If you do not agree on a parenting plan, the court will decide for you.
Some things the judge will consider are
- the mediator’s recommendation, if s/he makes one,
- who has cared for the child so far,
- how much time the child spends with each of you and how that time is spent, and
- the child’s safety.
The orders will be what the court thinks is best for the child.
Can I be deported if I go to court to ask for custody or paternity orders?
In the U.S., anyone, including undocumented immigrants, can ask the court for orders. The courts are not allowed to consider the parents’ immigration status when they make custody, paternity, and other family-law orders.
Exception: The court will consider your immigration status if one of you is asking to take the child out of the country or is being deported.
Visitation is the time the child spends with the other parent when only one parent has physical custody.
Visitation depends on the situation:
- if you have a court order, you must follow the rules about visitation,
- if you do not want to follow the court order because you are afraid for your child’s safety, ask the court for new orders—you can ask for supervised visitation or no visitation, and
- if you do not have a court order, you can set the rules for when, where, and how often you let the other parent be with the child.
Is it a good idea to get a visitation order?
Yes. It’s a good idea to get a visitation order, even if the other parent is not in your life now. Things can change, and the other parent may be in the child’s life later. An order can help make things clear for both parents and the child. It can also help prevent conflicts and confusion.
What if the other parent and I do not have a visitation order?
If you do not have a visitation order and you have sole custody, you decide on visitation. That means you can say when, where, and how visitation happens. It’s best to try to agree on a visitation schedule with the other parent. If the other parent doesn’t like your rules, s/he would have to go to court to ask for a visitation order.
What if I am worried about the child being with the other parent?
You can even say, “no visitation,” for the time being, and ask the court to make orders that would keep the child safe such as supervised visitation.
What is supervised visitation?
Supervised visitation is when another adult stays with the child and parent when they visit to make sure the child is safe. If you are worried about the child’s safety, you can ask the court for supervised visitation.
In some cases, a court may order supervised visitation if the other parent
- is abusive, dangerous, or violent,
- is abusing alcohol or drugs,
- has not had much contact with the child, or
- for other reasons that the judge thinks the child might not be safe with the other parent.
If the other parent becomes a better parent, the court will probably allow visitation without supervision.
Do I have to allow visitation if the other parent has not paid support?
John hasn’t paid child support in months. Can Esther keep him from seeing their child?
No, not for that reason. Child support and visitation rights are separate matters.
What if the other parent hides my child from me?
Call the police. It may be a crime to hide a child from the other parent, especially if you have a current custody or visitation order.
Should I cooperate with the other parent?
Yes, if you can. Conflict between parents is very hard on children. And courts usually do not like it if a parent prevents the other parent from having a relationship with the child.
Most mental health workers say it’s best for the baby if you can develop a polite relationship with the other parent. But if the other parent is not willing to work with you or makes you feel unsafe, the court can make orders to protect you and your child.
Can I let the other parent have more than the visitation we agreed on?
Yes. If the child lives with you, you can offer more visitation in a way that makes you and the baby feel safe. One example might be inviting the other parent to visit your home with your mom there to supervise.
If the child lives with the other parent, you can offer to help watch the child when the other parent needs it.
What if I do not have a custody or visitation order, and the other parent will not return my child?
The law says both legal parents have equal rights to custody of their child. If you do not have a court order, you cannot make the other parent give the child back, unless the child is not safe.
The police may
- go to the other parent’s house to check on the parent and the child, and
- work with you and the other parent to make an agreement about sharing the child—but if the child seems safe and there is no domestic violence in the other parent’s home, the police cannot make the other parent give back the child.
You would have to
- work it out with the other parent, or
- ask the court for a custody order to get the child back.
If you have problems with the other parent, you may have to show your legal papers to the police or the court, including
• custody and visitation orders,
• the baby’s birth certificate, or
• restraining orders.
Keep copies of all legal papers about your child in a safe place in your house.
What if my child is in danger now with the other parent?
If your child is in danger with the other parent or the other parent took the child in a violent way—even if you do not have a visitation order—you can ask the police to give you a temporary order that tells the other parent to stay away from the child for five to seven days. After that, you must ask the court for an order that lasts longer.
Travel with your child
Can I travel anywhere in the U.S. with my child?
You must follow these travel rules.
If you have a custody order:
If your order has travel rules, you must follow them. The order will say where you can travel with your child, and whether you need the other parent’s permission.
If you do not have a custody order and have not asked the court for one:
You may travel anywhere in the United States, but you should let the other parent know so s/he does not accuse you of kidnapping.
If you asked the court for a custody order but do not have it yet: You may not travel outside of California without the other parent’s written permission or a court order.
Important! If you want to travel without following these rules, you must get
- written permission from the other parent, or
- a court order that allows your travel plans.
You must follow the court’s travel orders.
If you do not, you could be charged with kidnapping.
Can I leave the U.S. with my child?
You and your child each need a U.S. passport to travel outside the country. When you apply for your child’s passport, both parents must sign the application. If the other parent cannot sign the application in person, s/he can provide a notarized statement allowing you to get the passport. The other parent also must provide written permission for the child to leave the country.
What if the other parent does not want me to travel outside the
U.S. with my child?
Ask the court for an order that lets you travel with your child outside the U.S. The court may
- give you the travel order,
- give you a travel order with restrictions, or
- not give you the order, especially if the other parent is afraid you may not come back.