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1. Statutory Authority to Determine Parentage

A preliminary issue that must be resolved before custody can be determined is that of parentage. Parentage determinations concern whom the law recognizes as a child's legal parent. The legal parent and child relationship gives rise to custody and visitation rights and support obligations. Fam. Code §§ 7601, 3000-3204.

The Uniform Parentage Act (UPA) establishes the grounds, authority, and procedural framework for parentage actions in California. Fam. Code § 7601, 7610-7611, 7630-7644, 7650. A California court may also determine parentage in child support actions brought by the Department of Child Support Services (DCSS) (Fam. Code § 17404(a)) in actions brought to make or enforce child support under the Uniform Interstate Family Support Act (UIFSA) (Fam. Code § 5700.402), and in actions under the Domestic Violence Prevention Act (DVPA) (Fam. Code §§ 6323 and 6346). Parentage of children born before a marriage may be determined in proceedings for dissolution, legal separation, or child support. Fam. Code § 2330.1.

2. Establishing Parentage: Summary

The parent and child relationship may be established in the following ways:

1. Giving birth to a child (outside the surrogate context). Fam. Code § 7610(a).
2. Being a natural mother's actual or putative spouse or registered domestic partner. Fam. Code §§ 7540, 7611(a)-(c).
3. Receiving a child into one's home and holding the child out as one's own natural child. Fam. Code § 7611(d).
4. Signing a parentage declaration. Fam. Code §§ 7570-7577.
5. Signing a stipulation of parentage in a domestic violence case (Fam. Code § 6323(b)(2)) or other action under the UPA (Fam. Code §§ 7600 et seq).
6. Being the spouse of a woman who conceives through assisted reproductive techniques with the consent of the spouse or being the intended parents of a child conceived through assisted reproductive techniques. Fam. Code § 7613; see also Marriage of Buzzanca (1998) 61 Cal.4th 1410, 1413, 72 Cal.Rptr.2d 280.
7. Adoption. Fam. Code §§ 7610(b), 8616.

3. Establishing Parentage: Presumptions

Some of the methods to establish paternity or for making determinations of nonparentage are based upon presumptions provided in the UPA.

a. Marital Conclusive Presumption

A child born to a wife cohabiting with her husband who is not impotent or sterile is conclusively presumed to be a child of the marriage. Fam. Code § 7540. Family Code § 7540 requires that three elements, (1) marriage, (2) cohabitation, and (3) potency and fertility of the husband, exist at the time of conception of the child in order for the conclusive presumption to apply. (City and County of San Francisco v Strahlendorf (1992) 7 Cal.4th 1911, 9 Cal.Rptr.2d 817.)

Family Code § 7540 has been held not to apply as a matter of due process where application of the presumption in particular circumstances would not further the social policy of promoting family unity that underlies the statute. (See Comino v Kelley (1994) 25 Cal.4th 678, 30 Cal.Rptr.2d 728; County of Orange v Leslie B. (1993) 14 Cal.4th 976, 17 Cal.Rptr.2d 797.)

b. Other Marital Presumptions

There are three circumstances in which a person is presumed to be the parent of a child as a result of marriage to the natural mother (Fam. Code § 7611(a)-(c)):

1. If the child is born during the marriage or within 300 days after termination of the marriage by death, annulment, divorce, declaration of invalidity, or separation.
2. If the presumed parent and the child's natural mother attempted to legally marry each other before the child's birth, and either
3. The child was born during the attempted marriage or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce; or
4. If the attempted marriage is invalid without a court order and the child is born within 300 days after the termination of cohabitation.

If after the child is born, the presumed parent and the child's natural mother have married, or attempted to marry, and either of the following is true:

1. With the person's consent, the presumed parent is named as the child's parent on the child's birth certificate, or
2. The presumed parent is obligated to support the child under a written voluntary promise or by court order.

c. Presumption Based on Holding Child Out as Own

Family Code § 7611(d) provides a presumption of parentage if the presumed parent receives the child into his or her home and openly holds out the child as his or her natural child. There is no durational minimum for a person to receive the child into their home; instead, "receipt of the child into the home must be sufficiently unambiguous as to constitute a clear declaration regarding the nature of the relationship...." As well, no "particular number or sorts of public acknowledgements are necessary to satisfy [Fam C] section 7611(d)," as to the requirement of holding out the child as one's own. See Charisma R. v Kristina S. (2009) 175 Cal.4th 361, 374-375, 96 Cal.Rptr.3d 26, overruled on other grounds in 50 C4th 512, 532 n7. The question is factual has there been a showing of a public acknowledgment of a parental relationship.

d. Presumptions Are To Be Applied on a Gender-Neutral Basis

Family Code § 7650 provides that the UPA provisions applicable to determining a father and child relationship shall be applied insofar as practicable to "an action to determine the existence or nonexistence of a mother and child relationship." In Elisa B. v Superior Court (2005) 37 C4th 108, 33 Cal.Rptr.3d 46, the California Supreme Court applied Fam. Code § 7611(d) in a gender-neutral manner to hold that a natural mother's former lesbian partner could establish a legal parent-child relationship. In S.Y. v S.B. (2011) 201 Cal.4th 1023, 134 Cal.Rptr.3d 1, Fam. Code § 7611(d) wasapplied without regard to gender in support of a finding that a same-sex partner was the presumed parent of her partner's adopted children.

e. Rebutting the Presumptions

Family Code § 7612 provides that the presumptions in Fam. Code § 7611 are rebuttable presumptions affecting the burden of proof and may be rebutted in an appropriate action by clear and convincing evidence.

An "appropriate action" is one in which there is another candidate for paternity "vying for parental rights and seek[ing] to rebut a [Fam C] § 7611(d) presumption in order to perfect his claim, or in which a court decides that the legal rights and obligations of parenthood should devolve upon an unwilling candidate." In re Nicholas H. (2002) 28 C4th 56, 70, 120 Cal.Rptr.2d 146.

f.  Family Code § 7611 Presumptions

In In re Nicholas H. (2002) 28 C4th 56, 120 Cal.Rptr.2d 146, the California Supreme Court held that a presumption arising under Fam. Code § 7611 is not necessarily rebutted by clear and convincing evidence that the presumed father is not the biological father. In Elisa B. v Superior Court(2005) 37 C4th 108, 33 Cal.Rptr.3d 46, the Court held that lack of a biological relationship did not preclude the former same-sex partner of a child's birth mother from being a presumed parent under Fam. Code § 7611(d).

4. Parentage by Voluntary Declaration

Parentage may also be determined by a written voluntary declaration of paternity filed with DCSS and has the same force and effect as a judgment for paternity issued by a court of competent jurisdiction. Fam. Code §§ 7570 et seq. The voluntary declaration is recognized as a basis for an order for child custody, visitation, or child support. Fam. Code § 7573. As a judgment, the voluntary declaration rebuts a presumption of paternity under Fam. Code § 7611 pertaining to another alleged parent, unless a court makes a determination that more than two persons are parents. Fam. Code § 7612(d); Kevin Q. v Lauren W. (2009) 175 Cal.4th 1119, 95 Cal.Rptr.3d 477 (voluntary declaration trumps rebuttable presumption of paternity); cf. In re Cheyenne B. (2012) 203 Cal.4th 1361, 1374 n17, 138 Cal.Rptr.3d 267 (in 2011 Fam. Code § 7612 was amended in response to Kevin Q.)

Note: A person's offer or refusal to sign a voluntary declaration of paternity may be considered as a factor, but is not determinative, as to the issue of legal parentage in any proceedings that establish or terminate parental rights. Fam. Code § 7612(g).

5. arentage by Stipulation

In an action under the DVPA, the court may accept a stipulation of paternity by the parties and, if paternity is uncontested, enter a judgment establishing paternity subject to the set aside provisions in Fam. Code § 7646. Fam. Code § 6323(b)(2).

The parties may also stipulate to parentage in any action brought under the UPA or in an action brought by DCSS under Fam. Code § 17410. Such stipulations are res judicata and may not be relitigated even if nonbiology is later established. Robert J. v Leslie M. (1997) 51 Cal.4th 1642, 59 Cal.Rptr.2d 905.

6. Parentage by Estoppel

A line of cases holds that the conduct of a husband with no biological ties to a child may nonetheless estop the husband from avoiding parental responsibilities even after the husband's marriage to the child's mother is dissolved. Marriage of Freeman (1996) 45 Cal.4th 1437, 1447, 53 Cal.Rptr.2d 439. The elements of parentage by estoppel exist where, although biological parentage is unknown or lacking, the facts show that (Clevenger v Clevenger (1961) 189 Cal.2d 658, 11 Cal.Rptr 707; Marriage of Valle(1975) 53 Cal.3d 837, 126 Cal.Rptr 38; Marriage of Johnson (1979) 88 Cal.3d 848, 152 Cal.Rptr 121):

• The person represented to the child he or she is the natural father or mother, and intended the child to rely on the representation;
• The child relied on the representation; and
• The child was ignorant of the true facts.

See also Marriage of Pedregon (2003) 107 Cal.4th 1284, 1290, 132 Cal.Rptr.2d 861 ("The courts have recognized the importance of a putative father continuing his paternal relationship with a child, including providing emotional and financial support, when the father has represented to the child and the child has been led to believe over a lengthy period of time that the father is his natural father.")

Unlike the presumption under Fam. Code § 7611(d), parentage by estoppel requires a long-term relationship between the parent and the child which frustrates the child's opportunity to discover the natural father. Clevenger v Clevenger, supra.

Parentage by estoppel does not apply if the father believed he was the natural father of the child. (County of San Diego v Arzaga (2007) 152 Cal.4th 1336, 1347-1348, 62 Cal.Rptr.3d 329.)

7. Assisted Reproduction

If a woman, with consent of an intended parent, conceives through physician-supervised assisted reproduction with semen or ova or both donated by a donor who is not her spouse, the intended parent is treated by law as if he or she were the natural parent of a child thereby conceived; the donor is not considered the parent. Fam. Code § 7613. Family Code § 7613 specifies mandatory procedures for written consent. If the requirements of Fam. Code § 7613 are met, blood tests may not be used to challenge paternity of the resulting child. Fam. Code § 7541(e).

Optional forms to use to show intent to be a parent of a child conceived by ova or sperm donation are provided in Fam. Code § 7613.5 and satisfy the written consent requirement of Fam. Code § 7613.

Note: A sperm donor, although precluded from establishing presumed parentage under Fam. Code § 7613, was not precluded from establishing presumed parentage based on post-birth conduct under Fam. Code § 7611. Jason P. v Danielle S.(2014) 226 Cal.4th 167, 171 Cal.Rptr.3d 789.

If an intended parent or parents use a gestational carrier or surrogate, the requirements for the written agreement to be used in this situation are set forth in Fam. Code § 7962. When a properly executed agreement is lodged with the court in an action to establish a parent-child relationship, it rebuts any presumptions created by Fam. Code §§ 7540-7541, 7610(b), 7611 and 7613 that the gestational carrier surrogate, her spouse, or partner are a parent of the child or children. Fam. Code § 7962(f)(1).

8. Resolving Multiple Presumptions of Parentage

Family Code § 7612 provides that if two or more presumptions arise under Fam. Code § 7610 or § 7611 which conflict, the presumption which on the facts is founded on weightier considerations of policy and logic will control.

In a provision added in 2013, the Legislature overturned the long-standing assumption that a child may have only two parents. Family Code § 7612(c) now provides that in appropriate actions, more than two personswith a claim to parentage may be found to be a parent, if the court finds that recognizing only two parents would be detrimental to the child. In determining detriment to the child, the court must consider all relevant factors, including, but not limited to, the harm of removing the child from a stable placement with a parent who has fulfilled the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time.

An appropriate action under Fam. Code § 7612(c) is one that protects an existing relationship with a nonparent, not a parental relationship that has not yet developed. In re Donovan L., Jr. (2016) 244 Cal.4th 1075, 1088-1091, 198 Cal.Rptr.3d 550. Stable placement does not just mean a living arrangement but also means a parent-child relationship has been established. Martinez v Vaziri (2016) 246 Cal.4th 373, 384-385, 200 Cal.Rptr.3d 884.

9. Standing to Bring a Parentage Action

Standing varies according to the basis of parentage or nonparentage underlying the action as follows:

·An action to establish the existence or nonexistence of the parent and child relationship under Fam. Code § 7611(a), (b), or (c) may be brought by (Fam. Code § 7630(a)):

The child, The child's natural mother, The presumed parent, An adoption agency to whom the child has been released, or A prospective adoptive parent.

An action to establish the existence or nonexistence of the parent and child relationship under Fam. Code § 7611(d) may be brought by any interested party. Fam. Code § 7630(b).

An action to establish the existence or nonexistence of the parent and child relationship, except in cases of a wife cohabitating with her husband (Fam. Code §§ 7540 et seq), may be brought by (Fam. Code § 7630(c)):

• The child;
• The child's representative;
• DCSS;
• A presumed parent, or a deceased or minor presumed parent's parent or personal representative; or
• In cases where the natural mother is the only presumed parent or a Welf. & Inst. Code § 300 action or adoption is pending, the alleged father or, if deceased or a minor, his parent or personal representative.

An action to determine the existence or nonexistence of the mother-child relationship may be brought by any interested party. Fam. Code § 7650(a).

A party to an assisted-reproduction agreement may bring an action to establish a parent and child relationship consistent with the intent of the agreement. Fam. Code § 7630(f).

A local child support agency may bring a parentage action in any case in which the agency believes it to be appropriate. Fam. Code § 7634.

1. Overview and Definitions

a. Legal and Physical Custody

In California, custody is of two types: legal and physical. (See Fam. Code §§ 3002-3007.) "Legal" custody refers to the right and responsibility to make decisions related to the health, education, and welfare of the child. (Fam. Code §§ 3003, 3006.) "Physical" custody refers to the time periods during which a child resides with and is under the supervision of a parent or other party. (Fam. Code §§ 3004, 3007.)

Legal and/or physical custody may be granted solely to one parent. This is called "sole custody." It may also be awarded jointly to both parents. This is called "joint custody." (See Fam. Code §§ 3002-3007.)

The type of custody (legal or physical) and the means of holding it (jointly or solely) can have an impact on future decisions the court is called on to make, such as whether a parent is allowed to relocate or change the residence of the minor child, and where the child attends school.

See Judicial Council Forms FL-341(D), Physical Custody Attachment, FL-341, Child Custody and Visitation (Parenting Time) Order Attachment, and FL-341(C), Children's Holiday Schedule Attachment.

b. Sole Custody

Sole legal custody means that one parent has the right and responsibility to make the decisions relating to the health, education, and welfare of the child. (Fam. Code § 3006.)

Sole physical custody means that the child resides with and is under the primary supervision of one parent, subject to court-ordered visitation by the other parent. (Fam. Code § 3007.)

If a noncustodial parent has unsupervised access to a child, some judges also state in their orders that the noncustodial parent has the ability to provide medical consent for the child in the event of an emergency.

c. Joint Custody

"Joint custody" means both joint physical custody and joint legal custody. (Fam. Code § 3002.)

"Joint legal custody" means both parents share the right and responsibility to make decisions related to the health, education, and welfare of the minor child. (Fam. Code § 3003.)

"Joint physical custody" means that each parent has significant periods of physical custody, and it must be shared in a way that assures the child of frequent and continuing contact with both parents subject to the factors and public policy determining the child's best interest described in Fam. Code §§ 3011 and 3020. (Fam. Code § 3004.) See Judicial Council Form FL-341(E), Joint Legal Custody Attachment.

2. Presumption and Special Rules Applicable to Joint Custody Orders

Presumption. There is a presumption that joint custody is in the minor child's best interest when the parents have agreed to joint custody or when they agree in open court at a custody hearing. (Fam. Code § 3080.) The court, however, in applying this presumption, must still give consideration to the factors that determine the child's best interest as described in Fam. Code § 3011.

If the parents do not agree to a joint custody order, the court may make such an order on the request of either parent. (Fam. Code § 3081.) Again, the court must consider and apply the factors that determine the child's best interest as described in Fam. Code § 3011.

There is not, however, a preference or presumption for or against joint legal custody, joint physical custody, or sole custody, and the court and the family are allowed the widest discretion to choose a parenting plan that is in the child's best interest. (Fam. Code § 3040(c).)

Special rules. When the court grants or denies a parent's request for joint custody in the absence of an agreement between both parents, it must, if requested by one of the parties, state the reasons for granting or denying the request. A broad statement that the joint custody order is or is not in the child's best interest is insufficient as a statement of the reasons for the court's action. (Fam. Code § 3082.)

Joint legal custody may be awarded without awarding joint physical custody. (Fam. Code § 3085.) When it makes a joint legal custody order, the court must specify the circumstances under which the consent of both parents is required to exercise legal control of the minor and the consequences of the failure to obtain mutual consent before acting. In all other circumstances, either parent acting alone may exercise legal control. A joint legal custody order also is not to be construed to permit an action that is inconsistent with the physical custody order unless the court expressly authorizes the action. (Fam. Code § 3083.)

An award of joint physical custody does not necessarily mean that the parties have an equal or approximately equal share of time. However, it does mean that both parties have significant periods of physical custody. (Fam. Code § 3004.) The court must specify the times of physical control for each party and the rights of each party during such times "in sufficient detail to enable a parent deprived of such control to implement laws for relief of child snatching and kidnapping." Fam. Code § 3084.

The court may specify one parent as primary caretaker and one home as primary home for the purposes of determining eligibility for public assistance even when making an order for joint legal and joint physical custody. (Fam. Code § 3086.)

Although Fam. Code §§ 3080 and 3081 appear to preclude the court from ordering joint custody on its own motion in the absence of an agreement by the parties or request of one party, the court may modify or terminate a joint custody order on its own motion. (Fam. Code § 3087.)

In counties that have a conciliation court, the court or the parties may, at any time, consult with the conciliation court for assistance in formulating a plan to implement a joint custody order or resolving disputes arising during the implementation of a joint custody order. (Fam. Code § 3089.) In addition, the court may require the parties to submit a plan for implementing the custody order. (Fam. Code § 3040(a)(1).)

The court may also refer parties to Family Court Services programs.

1. Family Court Proceedings

Family Code § 3022 provides that the superior court may, during the pendency of a proceeding, or at any time thereafter, make such orders for the custody of a child during minority as may be necessary or proper. Family Code custody and visitation proceedings are governed by Fam. Code §§ 3000 et seq, and these statutes apply to the following (Fam. Code § 3021):

• Proceedings for dissolution of marriage, nullity of marriage, and legal separation of the parties.
• An action for exclusive custody under Fam. Code § 3120.
• A proceeding to determine physical or legal custody or visitation in a proceeding under the Domestic Violence Prevention Act (DVPA) (Fam. Code §§ 6200 et seq).
• A proceeding to determine physical or legal custody or visitation in an action under the Uniform Parentage Act (UPA) (Fam. Code §§ 7600 et seq).
• A proceeding to determine physical or legal custody or visitation in an action brought by the local child support agency under Fam. Code § 17404.

2. Preemption of Family Court Custody Jurisdiction

a. Juvenile Court Jurisdiction

When a minor has been adjudged a dependent of the juvenile court under Welf & I C §§ 300 et seq, that court acquires sole and exclusive jurisdiction over matters relating to the custody of and visitation with the child. Welf & I C §§ 302(c), 304; Cal Rules of Ct 5.620. Any custody or visitation order issued by the juvenile court is a final judgment and remains in effect after the court's jurisdiction is terminated. It may not be modified in a family court proceeding or action unless the court finds that there has been a significant change of circumstances since the issuance of the order, and modifying the order is in the child's best interest. Welf & I C § 302(d). See JV-200, Custody Order-Juvenile Final Judgment.

The juvenile court has preemptive jurisdiction to adjudicate dependency notwithstanding a family court's preexisting custody order in a marital action, regardless of the degree to which the same issues will be heard in a dependency action. (In re Desiree B. (1992) 8 CA4th 286, 291-293, 10Cal.Rptr.2d 254 (juvenile court not collaterally estopped from reconsidering custody issues already decided in family court); In re Travis C. (1991) 233 CA3d 492, 499-503, 284Cal.Rptr. 469 (juvenile court had jurisdiction over petition containing same factual allegations despite fact that hearing on those allegations was pending in family law court; juvenile court's power to protect children even if family law court has prior jurisdiction is single exception to the rule that the first court to take jurisdiction among courts of concurrent jurisdiction has exclusive jurisdiction).)

b. Tribal Jurisdiction Under Indian Child Welfare Act

Indian tribes recognized by the Department of the Interior have exclusive jurisdiction over certain child custody proceedings involving Indian children residing or domiciled within their reservation under the Indian Child Welfare Act (ICWA) (25 USC §§ 1901 et seq), except where federal law has otherwise vested the state court with jurisdiction over such proceedings. 25 USC § 1911(a). In California, the terms of Public Law 280 (Act of August 15, 1953, ch 505, 67 Stat 588-590 (now codified as 18 USC § 1162, 28 USC § 1360, and other sections in Titles 18, 25 and 28)) provide California courts with concurrent jurisdiction over child welfare matters involving Indian children residing on most reservations in the state. (See Doe v Mann (9th Cir 2005) 415 F3d 1038, 1061.) The Washoe Tribe of California and Nevada is currently the only tribe in California with exclusive jurisdiction over child welfare matters involving Indian children who reside on the tribe's reservations. However, Indian children from exclusive jurisdiction tribes may be temporarily located in California. Further, a tribe retains exclusive jurisdiction of a child who is already a ward of a tribal court, even if that child is no longer a resident of the reservation. 25 USC § 1911(a); Welf & I C § 305.5(a).

In custody proceedings involving Indian children who are not domiciled or residing within the reservation, or are not already subject to tribal court jurisdiction, the tribes have concurrent but presumptive jurisdiction. In these cases, the tribes have the right to notice and to intervene in state court proceedings and may seek a transfer of the proceedings to tribal court. 25 USC §§ 1911(b)-(c), 1912(a). Such transfer must be granted unless one of the parents objects or there is good cause not to transfer. 25 USC § 1911(b); Welf & I C § 305.5; Cal Rules of Ct 5.483.

The ICWA does not apply to child custody disputes arising out of dissolution or legal separation proceedings, as long as custody is awarded to one of the parents. 25 USC § 1903. Therefore, the impact of the ICWA is limited in custody proceedings. However, because tribes are treated as "states" for the purposes of the UCCJEA, and the public acts, records, and judicial proceedings of Indian tribes are entitled to full faith and credit in the state court (25 USC § 1911(d)) in a case involving an Indian child, it is important to determine whether there are any existing orders or proceedings in a tribal court. A custody proceeding involving an Indian child generally is the same as any child custody proceeding, except that under the ICWA, there are a number of additional substantive and procedural requirements. In addition the court must recognize that an Indian child has an interest in maintaining the connection with the tribe. Welf & I C § 224(a)(2). 

Further, in these cases the court must not only consider the child's interests, but it must also consider the Indian tribe's interests and legal rights. (In re Crystal K. (1990) 226 Cal.3d 655, 661, 276Cal.Rptr. 619.) Under the ICWA, a child's tribe has rights to protects its interests that are independent of the rights of the child and the child's parents. (In re Kahlen W. (1991) 233 Cal.3d 1414, 1425, 285Cal.Rptr. 507.)

The U.S. Department of the Interior's Bureau of Indian Affairs has issued regulations (25 CFR pt 23) and guidelines (Guidelines for Implementing the Indian Child Welfare Act, December 2016, for courts to consider in applying the ICWA. Consistent with the statute itself (25 USC § 1921) and California statutes (Welf & I C § 224(d)), the regulations and guidelines provide that the ICWA, the regulations and guidelines themselves, and any state statutes and regulations designed to implement the ICWA should be liberally construed in favor of a result that is consistent with the congressional preference of deferring to tribal judgment on matters concerning Indian children. Although the guidelines are not binding, "the construction of a statute by the executive department charged with its administration is entitled to great weight." (In re Desiree F.(2000) 83 Cal.4th 460, 474, 99Cal.Rptr.2d 688, citing In re Krystle D.(1994) 30 Cal.4th 1778, 1801 n7, 37Cal.Rptr.2d 132.)

Because the ICWA establishes minimum federal standards (25 USC § 1902), the regulations and guidelines provide that state laws may offer broader protections, if the state laws do not infringe on rights afforded by the ICWA. Under the ICWA, a court may apply a state or other federal law to a child custody proceeding involving an Indian child if that law provides a higher standard of protection to the rights of the child's parents or the Indian custodian of the child, than that provided by the ICWA. 25 USC § 1921.

California law also recognizes that (Welf & I C § 224(a)(1), (2); Fam. Code § 175(a); Prob C § 1459(a)):

• No resource is more vital to the continued existence and integrity of an Indian tribe than its children;
• California has an interest in protecting Indian children who are members of or eligible for membership in an Indian tribe;
• California is committed to promoting practices to prevent involuntary out-of-home placement for Indian children;
• When involuntary out-of-home placement is necessary, California is committed to putting Indian children in a placement that reflects the child's unique tribal culture and promotes tribal ties; and
• It is in the interest of an Indian child that the child's tribal membership and connection to the tribal community be encouraged and protected, even if the Indian child was not originally in the custody of an Indian parent or Indian custodian.

In all Indian child custody proceedings, as defined in the ICWA, the court must (Welf & I C § 224(b); Fam. Code § 175(b); Prob C § 1459(b)):

• Consider these legislative findings,
• Strive to promote the stability and security of Indian tribes and families,
• Comply with the ICWA, and
• Seek to protect the child's best interests.

Many provisions of the ICWA were codified into the Welfare and Institutions Code, the Family Code, and the Probate Code in an effort to increase compliance with the ICWA and to improve outcomes for Indian foster children. (SB 678 (2006).) The California Legislature has expressed its commitment to promoting practices in accordance with the ICWA. (Fam. Code § 175.) In all Indian child custody proceedings, the courts must strive to comply with the ICWA and any higher state or federal standards of protection accorded to the rights of the child, parent, Indian custodian, or tribe. (Fam. Code § 175(b), (d).)

The Judicial Council has adopted Rules of Court to govern ICWA proceedings in juvenile, family, and probate proceedings (see Cal. Rules of Ct., rules (“CRC”) 5.480-5.487 and CRC 7.1015.)

The ICWA regulates custody awards to nonparents to a higher degree. For a comprehensive discussion of the ICWA.

3. Interstate Disputes

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (Fam. Code §§ 3400 et seq) determines the proper subject matter jurisdiction as being between interested states for virtually any custody or visitation dispute. (Fam. Code § 3402(c) (d).) Remember that a federally recognized Indian tribe is considered to be a "state" for UCCJEA purposes. UCCJEA requirements must be met whenever a California court is called on to make an initial or modified custody or visitation determination. Unless California is an appropriate court under UCCJEA guidelines, there is no jurisdiction to make any custody orders other than emergency orders. (Fam. Code §§ 3421-3424.)

The federal Parental Kidnapping Prevention Act (PKPA) (28 USC § 1738A) should also be consulted for jurisdictional requirements in appropriate cases. The PKPA was enacted to provide nationwide enforcement of custody orders made in accordance with the UCCJEA. (Marriage of Zierenberg(1992) 11 Cal.4th 1436, 1441-1442, 16Cal.Rptr.2d 238.) The PKPA contains provisions that are similar to those of the UCCJEA, but they are not identical in every aspect. The provisions of the PKPA are controlling in cases where its provisions conflict with those of the UCCJEA. Marriage of Zierenberg, supra.

A custody proceeding pertaining to an Indian child is not subject to the UCCJEA to the extent it is governed by the Indian Child Welfare Act.

4. Initial Custody Determinations

a. Grounds for Jurisdiction

The UCCJEA provides exclusive grounds for a California court's jurisdiction to make an initial child custody determination. (Fam. Code § 3421(a), (b).) A child custody determination is defined as a judgment, decree, or other order of a court providing for the legal custody, physical custody, or visitation with respect to the child. Child custody determinations include permanent, temporary, initial, and modification orders. (Fam. Code § 3402(c).)

Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination. (Fam. Code § 3421(c).)

Except as otherwise provided in the UCCJEA provisions for emergency jurisdiction under Fam. Code § 3424, there are four individual grounds for jurisdiction for making initial child custody determinations. The corresponding grounds on which a California court may assume jurisdiction under the PKPA are found in 28 USC § 1738A(c)(2)(A)-(D).

b. California Is Child's Home State

Jurisdiction is established in California under the UCCJEA if California was the child's home state on the date of the commencement of the proceeding; or was the child's home state within 6 months before the commencement of the proceeding and the child is absent from California, but a parent or person acting as a parent continues to live in California. (Fam. Code § 3421(a)(1); see Schneer v Llaurado (2015) 242 Cal.4th 1276, 195Cal.Rptr.3d 858 (discusses how Fam. Code §§ 3402 and 3421 work together to provide two bases for home state jurisdiction).)

Home state. A child's home state is the state in which the child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of the custody proceeding. If the child is less than 6 months of age, the home state is the state in which the child lived from birth with a parent or person acting as a parent. A period of temporary absence of any of the mentioned persons counts as part of the time period. (Fam. Code § 3402(g); see Ocegueda v Perreira (2015) 232 Cal.4th 1079, 181Cal.Rptr.3d 845 (physical presence of child determines where child lived; Hawaii was home state of 6-month-old child born in Hawaii and intent of parent to move was irrelevant).)

Person acting as a parent. A person acting as a parent means a person, other than a parent, who (Fam. Code § 3402(m)):

• has physical custody of the child or has had physical custody for a period of 6 consecutive months, including any temporary absence, within 1 year immediately before the commencement of the custody proceeding; and
• has been awarded legal custody by a court or claims a right to legal custody under California law.

c. No Other Home State; California More Appropriate Forum

Under the UCCJEA, California may exercise jurisdiction if no other state is the child's home state as specified in Fam. Code § 3421(a)(1), or a court of the child's home state has declined to exercise jurisdiction on the grounds that California is the more appropriate forum under Fam. Code § 3427 or § 3428, and both of the following are true (Fam. Code § 3421(a)(2)):

• The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with California other than mere physical presence.
• Substantial evidence is available in California concerning the child's care, protection, training, and personal relationships.

d. Other Courts Having Jurisdiction Deferred to California

Jurisdiction is established in California under the UCCJEA if all courts having jurisdiction under Fam. Code § 3421(a)(1) or (a)(2) have declined to exercise jurisdiction on the ground that a California court is the more appropriate forum to determine the child's custody under Fam. Code § 3427 or § 3428. (Fam. Code § 3421(a)(3).)

e. Jurisdiction in No Other Court

Under the UCCJEA, California may exercise jurisdiction if no court of any other state would have jurisdiction under the criteria specified in Fam. Code § 3421(a)(1), (a)(2), or (a)(3). (Fam. Code § 3421(a)(4).)

5. Declining Exercise of Jurisdiction

There are three situations in which a California court that has jurisdiction under Fam. Code § 3421 may choose or be required to decline to exercise its jurisdiction to make an initial child custody determination.

a. Simultaneous Proceedings in Another State

Except as otherwise provided in Fam. Code § 3424 (emergency jurisdiction), a California court may not exercise its jurisdiction under Fam. Code §§ 3421-3430 if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child has been commenced in a court of another state having jurisdiction substantially in conformity with the UCCJEA, unless the proceeding has been terminated or is stayed by the court of the other state because a California court is a more convenient forum under Fam. Code § 3427. (Fam. Code § 3426(a).)

Except as otherwise provided in Fam. Code § 3424, a California court, before hearing a child custody proceeding, must examine the court documents and other information supplied by the parties under Fam. Code § 3429. (Fam. Code § 3426(b).) If the court determines that a child custody proceeding has been commenced in a court in another state having jurisdiction substantially in accordance the UCCJEA, it must stay its proceeding and communicate with the court of the other state. If the court of the state having jurisdiction does not determine that the California court is a more appropriate forum, the California court must dismiss the proceeding. (Fam. Code § 3426(b).)

b. Inconvenient Forum

A California court that has jurisdiction under the UCCJEA to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised on motion of a party, the court's own motion, or request of another court. (Fam. Code § 3427(a).)

Before determining whether it is an inconvenient forum, the court must consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court must allow the parties to submit information and must consider all relevant factors, including (Fam. Code § 3427(b)):

1. Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child.
2. The length of time the child has resided outside California.
3. The distance between the California court and the court in the state that would assume jurisdiction.
4. The degree of financial hardship to the parties in litigating in one forum over the other.
5. Any agreement of the parties as to which state should assume jurisdiction.
6. The nature and location of the evidence required to resolve the pending litigation, including testimony of the child.
7. The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence.
8. The familiarity of the court of each state with the facts and issues in the pending litigation.
9. If the California court determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it
10. Must stay the proceedings on condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper (Fam. Code § 3427(c)); and
11. May require the party who commenced the proceeding to pay, in addition to the costs of the proceeding in this state, necessary travel and other expenses, including attorney's fees, incurred by the other parties or their witnesses (Fam. Code § 3427(e)).

A court may decline to exercise its jurisdiction of a child custody determination if it is incidental to an action for dissolution of marriage or other proceeding and still retain jurisdiction over the dissolution or other proceeding. (Fam. Code § 3427(d).)

c. Unjustifiable Conduct of Petitioner

Except as otherwise provided in Fam. Code § 3424 (emergency jurisdiction), or by any other law of this state, if a California court has jurisdiction under the UCCJEA because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court must decline to exercise its jurisdiction unless one of the following is true (Fam. Code § 3428(a)):

• The parents and all persons acting as parents have acquiesced in the exercise of jurisdiction.
• A court of another state otherwise having jurisdiction under Fam. Code §§ 3421-3423, determines that California is a more appropriate forum under Fam. Code § 3427.
• No court of any other state would have jurisdiction under the criteria specified in Fam. Code §§ 3421-3423.

Fam. Code § 3428 is directed at a petitioning parent's wrongful taking of a child from another state in an attempt to create jurisdiction in a chosen forum. 

California courts, interpreting the former Uniform Child Custody Jurisdiction Act "wrongful conduct" provision (former Fam. Code § 3408), have generally limited application of the provision to situations in which a child has been removed from a state in violation of an existing custody order or injunction. (See Haywood v Superior Court (2000) 77 Cal.4th 949, 956-957, 92Cal.Rptr.2d 182.)

If a California court declines to exercise its jurisdiction under Fam. Code § 3428(a), it may fashion an appropriate remedy to ensure the safety of the child and prevent a recurrence of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under Fam. Code §§ 3421-3423. (Fam. Code § 3428(b).)

If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction under Fam. Code § 3428(a), it must assess necessary and reasonable expenses against the party seeking to invoke its jurisdiction. These include costs for communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate. (Fam. Code § 3428(c).)

In making a determination under Fam. Code § 3428, a court may not consider as a factor weighing against the petitioner any taking or retention of the child after a visit, or other temporary relinquishment of physical custody, from the person who has legal custody, if there is evidence that the taking or retention of the child was a result of domestic violence against the petitioner, as defined in Fam. Code § 6211. (Fam. Code § 3428(d).)

6. Emergency Jurisdiction

Even when UCCJEA jurisdiction rests with another state, a California court may exercise temporary custody jurisdiction if the child is present in this state and either (1) the child has been "abandoned," that is, left without provision for reasonable and necessary care or supervision; or (2) the exercise of such jurisdiction is "necessary in an emergency" to protect the child because the child, the child's sibling, or the child's parent is subjected to, or threatened with, "mistreatment or abuse." (Fam. Code §§ 3424(a), 3402(a). See Marriage of Fernandez-Abin & Sanchez (2011) 191Cal.4th 1015, 120Cal.Rptr.3d 227 (in a case involving prior custody order from Mexico, the fact that a California judge declined to exercise emergency jurisdiction over the children would not preclude a second California judge from revisiting the issue under Fam. Code § 3424(a) after finding that the children witnessed husband's domestic violence against wife).)

Unless there is a previous child custody determination that is entitled to enforcement under the UCCJEA, or a child custody proceeding has been commenced in a state with proper UCCJEA jurisdiction, an emergency child custody order remains in effect until an order is obtained from the court having jurisdiction. Such an order will become a final determination if the order so provides and if California becomes the home state of the child. (Fam. Code § 3424(b).)

If there is a previous child custody determination entitled to UCCJEA enforcement or an action properly commenced, any emergency order must specify a period of time that the court considers adequate to allow the person seeking an order to obtain it from the proper state. (Fam. Code § 3424(c).) If a California court learns of a valid prior order or commencement of an action in another state, it must immediately communicate with the out-of-state court to resolve the emergency, protect the safety of the parties and the child, and determine a period for the duration of the temporary order. (Fam. Code § 3424(d).)

7. Modification Jurisdiction

a. Modification of Prior California Order

Except as otherwise provided in Fam. Code § 3424 (emergency jurisdiction), a California court that has made a child custody determination consistent with Fam. Code § 3421 or § 3423 has exclusive, continuing jurisdiction over the determination unless either of the following occurs (Fam. Code § 3422(a)):

• A California court determines that the child, the child and one parent, or the child and a person acting as a parent no longer have a "significant connection" with California, and that substantial evidence is no longer available in California concerning the child's care, protection, training, and personal relationships. A "significant connection" exists as long as the parent exercising visitation rights still lives in California and the relationship with the child has not deteriorated to the point at which the exercise of jurisdiction would be unreasonable. (Grahm v Superior Court(2005) 132Cal.4th 1193, 1200, 34Cal.Rptr.3d 270.)
• A California court or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in California.

A California court that has made a child custody determination and does not have exclusive, continuing jurisdiction under Fam. Code § 3422 may modify that determination only if it has jurisdiction to make an initial determination under Fam. Code § 3421. (Fam. Code § 3422(b).)

b. Modification of Order of Another State

Except as otherwise provided in Fam. Code § 3424, if another state has made a child custody determination, a California court may not modify it unless California would have jurisdiction to make an initial custody determination under Fam. Code § 3421(a)(1) or (a)(2) and either of the following occur (Fam. Code § 3423):

• The court of the other state determines it no longer has exclusive, continuing jurisdiction under Fam. Code § 3422 or that a California court would be a more convenient forum under Fam. Code § 3427; or
• A California court or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.
• 
  

c. Duty to Communicate in Simultaneous Proceedings

Before hearing a child custody proceeding, the court must examine court documents and other information supplied by the parties. If the court determines that the proceeding has been commenced in a court in another state having jurisdiction substantially in accordance with the UCCJEA, the California court must stay the proceedings and communicate with the out-of-state court on the question of that state's exclusive, continuing jurisdiction. If the out-of-state court does not determine that California is a more appropriate forum, the California court must dismiss the proceeding. (Fam. Code § 3426(b).)

d. Proceeding To Enforce Order in Another State

In a proceeding to modify a child custody determination, a California court must determine whether a proceeding to enforce the determination has been commenced in another state. (Fam. Code § 3426(c).) If a proceeding to enforce a child custody determination has been commenced in another state, the court may do any of the following (Fam. Code § 3426(c)):

• Stay the proceeding for modification pending the entry of an order of a court of the other state enforcing, staying, denying, or dismissing the proceeding for enforcement.
• Enjoin the parties from continuing with the proceeding for enforcement.
• Proceed with the modification under conditions it considers appropriate.

E. Declining Exercise of Jurisdiction To Modify Order

A California court that has jurisdiction under the UCCJEA to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. (Fam. Code § 3427 (applicable to both initial custody orders and modification of custody orders).)

8. Venue

Venue, in cases where the custody issues are part of dissolution proceedings, lies in a county in which either party has been a resident for 3 months immediately before the filing, as long as the party was also a California resident for 6 months immediately before the filing. (Fam. Code § 2320; CCP § 395.) "Residency, for purposes of dissolution, means domicile which requires both physical presence and intent to remain 'indefinitely." (Marriage of Obrecht (2016) 245Cal.4th 1, 13-14, 199Cal.Rptr.3d 438 (citations omitted, emphasis in original).)

In cases where the custody issues are part of an action for legal separation or nullity, proper venue is a county in which either party resides at the commencement of the action. (CCP § 395.)

A motion to change venue may be brought on grounds that the ends of justice would be promoted by the change. (CCP § 397(e); See Silva v Superior Court (1981) 119Cal.3d 301, 173Cal.Rptr. 832.)

In proceedings to determine parentage under the Uniform Parentage Act, the case must be brought in one of the following counties (Fam. Code § 7620(c) and 7962(e)):

• The county in which the child resides or is found;
• If the child is the subject of a pending or proposed adoption, any county where the licensed California adoption agency to which the child has been or is proposed to be relinquished to maintains an office, or the county where an office of the department or a public adoption agency that is investigating the petition is located; or
• If the parent is deceased, the county where probate proceedings for the estate of the parent of the child has been or could be commenced.

If the child was conceived pursuant to an assisted-reproduction agreement for gestational carriers, the case may be brought in the county where the (Fam. Code § 7962(e)):

• Child is anticipated to be born;
• Intended parent or intended parents reside;
• Surrogate resides;
• Assisted-reproduction agreement for gestational carriers is executed; or
• Medical procedures pursuant to the agreement are to be performed.

1. Reasonable Visitation by Parent

The court must grant a parent reasonable visitation rights unless it is shown that such visitation would be detrimental to the child's best interest. (Fam. Code § 3100(a).) Noncustodial parents with court-ordered visitation rights have a liberty interest in the companionship, care, custody, and management of their children. (Brittain v Hansen (9th Cir 2006) 451 F3d 982, 992.)

In determining what is "reasonable visitation," the court has broad discretion and may craft a variety of orders. All visitation orders must be made to protect the child's best interest and must take into account the broad policy of ensuring the child's health, safety, and welfare, and to the extent consistent therewith, the policy preference for frequent and continuing contact with both parents.

As it does when making a decision on whether to award any form of joint custody, the court must also consider a variety of factors that may create presumptions or be indicators of detriment to the child's best interest. Such factors include domestic violence, alcohol abuse, illegal drug use, and parenting skills. Such considerations of detriment must also be balanced against the policy of ensuring frequent and continuing contact with both parents.

2. Visitation by Incarcerated Parent

An incarcerated parent has a right to reasonable visitation with his or her child. Therefore, visitation between children and their incarcerated parents cannot be denied without a detriment finding. (Hoversten v Superior Court (1999) 74 Cal.4th 636, 640-641, 88 Cal.Rptr.2d 197.) The Hoversten case outlines some alternative means by which an incarcerated parent can secure meaningful access to the court to self-represent when determining visitation rights (Id. 74 Cal.4th at 642-644):

• Deferring the action until the parent's release.
• Appointing counsel for the parent.
• Ordering the transfer of parent to court.
• Using depositions instead of personal appearances.
• Propounding written discovery.
• Conducting hearing by telephone or closed circuit television.
• Using services of the family court mediator (Note: Mediation mandatory in contested cases).

Bar to visitation. An incarcerated parent cannot be granted visitation rights with a child conceived by the parent's act of rape for which the parent was convicted.

3. Visitation by Nonparents

The court has discretion to grant reasonable visitation rights to nonparents having an interest in the child's welfare. (Fam. Code § 3100(a).) Provision is also made for reasonable visitation by stepparents, grandparents, and specified relatives of a deceased parent if the court determines that such visitation is in the child's best interest. (Fam. Code §§ 3101-3104.) Nonparent visitation may be ordered based on stipulation of the parents. (Marriage of Ross & Kelley (2003) 114 Cal.4th 130, 140, 7 Cal.Rptr.3d 287.)

The United States Supreme Court in Troxel v Granville (2000) 530 US 57, 120 S Ct 2054, 147 L Ed 2d 49, has set limits on nonparent visitation orders. Several California cases interpreting the state's nonparent visitation laws since Troxel have found the laws to be unconstitutional as applied. These cases and the application of the Troxel standards are discussed in more detail below.

a. Troxel Limits on Visitation

Troxel centered on a Washington State statute, similar to Fam. Code §§ 3101-3104, permitting "any person" to petition for visitation and allowing the court to grant visitation "whenever visitation may serve the best interest of the child." Over objections of the child's mother, the state trial court granted the paternal grandparents extensive visitation of their deceased son's children. The Supreme Court held that, in the context of grandparent visitation, the statute violated the due process rights of a fit parent and her family to make decisions concerning the care, custody and control of their family. (Troxel v Granville (2000) 530 US 57, 64-66, 73, 120 S Ct 2054, 147 L Ed 2d 49.) Several California cases since Troxel have found court-ordered visitation for parents of a deceased mother or father under Fam. Code § 3102 unconstitutional as applied, although none have held that the statute is unconstitutional on its face. (See Zasueta v Zasueta (2002) 102 Cal.4th 1242, 1254-1255, 126 Cal.Rptr.2d 245; Punsly v Ho (2001) 87 Cal.4th 1099, 1110, 105 Cal.Rptr.2d 139 (overruled on other grounds in 50 Cal.4th 1206, 1226 n4); and Kyle O. v Donald R. (2000) 85 Cal.4th 848, 851, 102 Cal.Rptr.2d 476.) The court in Herbst v Swan (2002) 102 Cal.4th 813, 125 Cal.Rptr.2d 836, found that the application of Fam. Code § 3102 was unconstitutional as applied to a visitation request by the adult sibling of a child when they have a deceased parent.

According to Troxel, the court may not rely solely on the best-interest-of-the-child standard when considering nonparent visitation if there is a fit custodial parent. (Troxel v Granville, supra, 530 US at 67.) Such reliance infringes on the fundamental rights of a parent simply because a judge believes a "better" decision could be made. To the extent Fam. Code § 3102 is applied to requests by nonparent relatives for visitation using only a best-interest-of-the-child standard, it is unconstitutional. (See Troxel v Granville, supra; Zasueta v Zasueta, supra; Punsly v Ho, supra; and Kyle O. v Donald R., supra.)

In determining whether to grant visitation to nonparents, the above cases require the court to:

• Determine if the parent is fit. If so, there is a presumption that the fit parent acts in the child's best interest.
• Give special weight to a fit parent's determination of what is in the child's best interest.
• Not shift the burden to the fit parent to show that the visits are not in the child's best interest.
• Consider whether the fit parent has voluntarily allowed visits, no matter how limited.

In other words, the court may not presume that nonparent visits are in the child's best interest and it must presume that a fit custodial parent's decision is in the child's best interest. Thus, any order for nonparent visits must be narrowly tailored to advance the interest of the nonparent relatives and the child in maintaining a natural relationship and cannot unduly infringe on the parent's fundamental right to make decisions for a child.

b. Visitation by Relatives of Deceased Parent

If a minor's parent is deceased, the deceased parent's children, siblings, parents, and grandparents may be granted reasonable visitation with the child if the court finds that such visitation would be in the child's best interest. (Fam. Code § 3102(a).)

Before granting such visitation to persons other than a grandparent, the court must consider the amount of personal contact between the party seeking visitation and the child before the application for the visitation order. (Fam. Code § 3102(b).) If the living parent objects to visitation of relatives of the deceased parent, the Troxel analysis, discussed in §200.78, is applicable, and the court should in most cases respect the living parent's wishes. (See Kyle O. v Donald R. (2000) 85 Cal.4th 848, 863, 102 Cal.Rptr.2d 476 (fit parent presumed to act in child's best interests, and his or her decision regarding the amount of visitation and preference for less structured and more spontaneous manner of visitation is given deference).)

The family of a deceased parent may not seek visitation if a person other than a stepparent or grandparent has adopted the child. (Fam. Code § 3102(c).)

Family Code § 3102 has withstood constitutional review even though it may allow for nonparent visitation over the objection of two fit parents. (Fenn v Sherriff (2003) 109 Cal.4th 1466, 1477-1478, 1 Cal.Rptr.3d 185 (Troxel requirement that parental decisions be given special weight does not mean they are insulated from any court intervention).)

c. Stepparent Visitation

The court may grant visitation to a stepparent if it is determined to be in the child's best interest, provided such visitation rights do not conflict with the custody or visitation rights of a birth parent who is not a party to the proceeding. (Fam. Code § 3101.) This statute does not authorize the court to grant joint custody to the stepparent. (See Marriage of Lewis & Goetz (1988) 203 Cal.3d 514, 517-518, 250 Cal.Rptr. 30.) Visitation under Fam. Code § 3101 is not available to a natural parent who has relinquished the child to adoption. (Marckwardt v Superior Court (1984) 150 Cal.3d 471, 478-479, 198 Cal.Rptr. 41. But see Fam. Code § 3100(a) (visitation may be granted to "any other person" having an interest in the child's welfare).)

If a birth parent objects to visitation of a stepparent, the rationale of Troxel and the California cases interpreting it apply, and the court should in most cases respect the birth parent's wishes. (Marriage of W. (2003) 114 Cal.4th 68, 72-75, 7 Cal.Rptr.3d 461 (court ordered stepparent visitation without applying presumption favoring birth parent's decision that visitation was not in child's best interest; Fam. Code § 3101 found unconstitutional as applied).)

A stepparent visitation order may not interfere with the custody or visitation rights of a birth parent who is not a party to the proceeding. (Fam. Code § 3101(c).)

If a protective order under Fam. Code § 6218 (part of the Domestic Violence Prevention Act) has been directed to a stepparent, the court must consider whether the child's best interest requires that any visitation by the stepparent be denied. (Fam. Code § 3101(b).)

d. Grandparent Visitation

Family Code §§ 3103 and 3104 authorize the court to award visitation to grandparents when both parents are still living. Note that under Fam. Code § 3103, grandparents may seek visitation in any custody proceeding between the parents, while under Fam. Code § 3104, grandparents may bring an independent petition to seek visitation.

Under Fam. Code § 3103, grandparent visitation claims are incidental to a custody proceeding between the parents that is properly before the court. Thus, the grandparents must be joined in the action between the parents. In contrast, Fam. Code § 3104 was adopted to fill the gap in cases where neither parent had died (Fam. Code § 3102) and there was no custody proceeding between the parents pending (Fam. Code § 3103). (See White v Jacobs (1988) 198 Cal.3d 122, 124-125, 243 Cal.Rptr. 597.)

Unlike the broad general statute for nonparent visitation when a parent is deceased (Fam. Code § 3102), California's specific grandparent visitation statutes when both parents are still living do not appear to run up against the constitutional limitations established in Troxel. (See Lopez v Martinez (2000) 85 Cal.4th 279, 287-288, 102 Cal.Rptr.2d 71, superseded by Fam. Code § 3104(b)(5) on another ground as stated in Id. 529, 534-535.)

Until the case of Rich v Thatcher (2011) 200 Cal.4th 1176, 132 Cal.Rptr.3d 897, no appellate decision had ever addressed the standard of proof to be applied in a situation where one parent was deceased and the surviving parent opposed visitation by the parent of the deceased parent. In Rich v Thatcher, the court acknowledged that Fam. Code § 3102 permitted such grandparents to have visitation with the child if the visitation would be in the child's best interest. The Court held that to overcome the opposition to visitation by a "fit" surviving parent, the grandparent must prove by clear and convincing evidence that denial of such visitation would be detrimental to the child. (Id. at 1180.)

Both Fam. Code §§ 3103 and 3104 contain rebuttable presumptions that visitation with a grandparent is not in the child's best interest if both parents oppose such visits or if the parent with sole legal custody, or with whom the child resides, objects to the grandparent's visitation. (Fam. Code §§ 3103(d), 3104(e), (f).)

Family Code § 3104 governs requests for grandparent visitation once judgment has been entered dissolving a marriage and awarding sole custody to one parent. (Marriage of Harris (2004) 34 Cal.4th 210, 223, 17 Cal.Rptr.3d 842.) The California Supreme Court has upheld the constitutionality of Fam. Code § 3104, holding that the statute does not violate either the federal or state constitutional rights of the custodial parent. (Id. 34 Cal.4th at 230.) 

Supporting the statute's constitutionality is its requirement that there be "a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child" and directing the court to balance "the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority" before ordering grandparent visitation. (Id. 34 Cal.4th at 225-226.)

(1) Visitation Request in Pending Custody Proceeding (Fam. Code § 3103)

When there is an action under Fam. Code § 3021, a grandparent who is permitted to join the action and seek visitation is subject to several statutory requirements other than the rebuttable presumption affecting the burden of proof:

• The grandparent must give notice, by certified mail, return receipt requested, postage prepaid, to each parent of the child, to any stepparents, and to any person who has physical custody of the child, or to the attorneys of record of the parties to the proceedings. (Fam. Code § 3103(c).)
• No visitation rights may be ordered if they would conflict with the custody or visitation rights of a birth parent who is not a party to the proceeding. (Fam. Code § 3103(e).)
• If a protective order under Fam. Code § 6218 (part of the Domestic Violence Prevention Act) has been directed to the grandparent seeking visitation, the court must consider whether the child's best interest requires that visitation by the grandparent be denied. (Fam. Code § 3103(b).)
• Court-ordered grandparent visitation may not be used as a basis for or against a change of residence of the child, although it is one factor the court must consider in ordering a change of residence. (Fam. Code § 3103(f).)
• The court may exercise its discretion to allocate the percentage of grandparent visitation between the parents for purposes of calculating guideline child support (Fam. Code § 3103(g)(1)) and may order a parent or grandparent to pay to the other an amount for transportation (Fam. Code § 3103(g)(2)(A)) or basic expenses related to the visitation (Fam. Code § 3103(g)(2)(B)). "Basic expenses" includes medical expenses, daycare costs, and other necessities. (Fam. Code § 3103(g)(2)(B).)

Note that only costs essential to facilitate the grandparent's visitation may be assessed against the grandparent. (Marriage of Perry (1998) 61 Cal.4th 295, 312-314, 71 Cal.Rptr.2d 499 (trial court erred when it assessed costs of counseling for the child when there was insufficient evidence to show that counseling was necessary to facilitate or redress problems arising during grandmother's visitation).)

(2) Independent Action to Request Visitation (Fam. Code § 3104)

When there is no pending custody action between living parents, grandparents may file an independent petition for a visitation order under Fam. Code § 3104. In this case, the petitioner-grandparent must give notice by personal service under CCP § 415.10 to each parent, any stepparent, and any person who has physical custody of the child. (Fam. Code § 3104(c).)

Before ordering visitation, the court must do both of the following (Fam. Code § 3104(a)):

• Find that there is a preexisting relationship between the grandparent and grandchild that has "engendered a bond such that visitation is in the best interest of the child."
• Balance the child's interest in having visitation with the grandparent against the right of the parents to exercise their parental authority. (Note: The court must balance the child's interest against parental rights, not the grandparent's interest.)

These two requirements, together with the rebuttable presumptions affecting the burden of proof that such visits are not in the child's best interest in the face of parental opposition (Fam. Code § 3104(e), (f)), appear to satisfy the constitutional requirements of Troxel. (See Marriage of Harris (2004) 34 Cal.4th 210, 226, 230, 17 Cal.Rptr.3d 842 ("section 3104 does not suffer from the constitutional infirmities that plagued the Washington statute considered in Troxel"); Lopez v Martinez (2000) 85 Cal.4th 279, 287-288, 102 Cal.Rptr.2d 71 (noting that unlike the state statute in Troxel, the California statute only allows a petition to be filed when some disruption to the nuclear family has already occurred, and makes clear a court must accord extreme deference to parental authority while considering the child's best interest), superseded by Fam. Code § 3104(b)(5) on another ground as stated in 223 Cal.4th 529, 534-535; Fam. Code § 3104(e) (presumption when the natural or adoptive parents agree that there should be no visitation), Fam. Code § 3104(f) (presumption when a parent who has been awarded sole legal and physical custody in another proceeding or a parent with whom the child resides if there is no custody order objects to the grandparent visitation).)

The California Supreme Court has upheld the constitutionality of Fam. Code § 3104, holding that the statute did not violate either the federal or state constitutional rights of the custodial parent based in part on the above two requirements. (Marriage of Harris, supra, 34 Cal.4th at 225-226, 230.)

If a grandparent seeks visitation when the natural or adoptive parents are still married, one or more of the following circumstances must exist in order for the grandparent to file a visitation petition (Fam. Code § 3104(b)):

• The parents, at the time of filing, are living separately and apart on a permanent or indefinite basis.
• One parent has been absent for more than 1 month without the other spouse knowing the absent spouse's whereabouts.
• One parent joins in the petition with the grandparents.
• The child is not residing with either parent.
• The child has been adopted by a stepparent.
• One parent is incarcerated or involuntarily institutionalized.

If at any time a change of circumstances occurs so that none of these circumstances exist, the parent or parents may move the court to terminate the grandparent visitation, and the court must grant the termination. (Fam. Code § 3104(b).)

The statutory requirements under Fam. Code § 3104 parallel those of a grandparent visitation request under Fam. Code § 3103:

• The court must consider whether the child's best interest requires that the request for grandparent visitation be denied if a protective order as defined in Fam. Code § 6218 (Domestic Violence Prevention Act) has been directed to the grandparent. (Fam. Code § 3104(d).)
• No visitation rights may be ordered if they would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding. (Fam. Code § 3104(g).)
• Court-ordered grandparent visitation may not be used as a basis for or against a change of residence for the child, although it is one factor the court must consider when ordering a change of residence. (Fam. Code § 3104(h).)
• The court may allocate the percentage of grandparent visitation between the parents for purposes of calculating guideline child support (Fam. Code § 3104(i)(1)) and may order a parent or grandparent to pay to the other an amount for transportation (Fam. Code § 3104(i)(2)(A)) or basic expenses related to the visitation (Fam. Code § 3104(i)(2)(B).)

Note: The case Stuard v Stuard (2016) 244 Cal.4th 768, 199 Cal.Rptr.3d 821, held that where parents are divorced, awarding grandparents visitation rights over the father's objection even though there were no allegations of parental unfitness, did not violate his due process rights. There was a preexisting relationship between the grandparents and child, and the court also held that the father could not unilaterally terminate that relationship which he had previously fostered.

H. Supervised Visits and Exchanges

When there is concern for the safety or welfare of a child during visits with a noncustodial parent, the court may order that the visits be supervised by a relative, friend, or a professional. (See Fam. Code §§ 3200 et seq.) The Judicial Council developed standards for supervised visitation providers in conformance with Fam. Code § 3200.5. (See Judicial Council Form FL-341(A), Supervised Visitation Order.) The standards are set forth in Cal. Rules of Ct. 5.20.

1. Court's Determination of Need and Manner of Visitation

Under Cal. Rules of Ct. 5.20(c), the court must make the final decision about the need for and the manner, terms, and conditions of any supervision. This decision depends on several factors, including the degree of risk in each case, the financial situation of the parties, and the local resources available for supervision. The court may consider recommendations regarding the need for supervision and the level and manner of supervision from the parties and their attorneys, the attorney for the child, Family Court Services staff, valuators, and therapists.

2. Types of Supervised Visitation Providers and Qualifications

The Judicial Council has established rules and standards for the qualifications, training, and experience of supervised visit providers. (See Cal. Rules of Ct. 5.20.) The goal of the Judicial Council standards, and the court's goal in ordering supervised visitation or exchanges should be to ensure the safety and welfare of the child, adults, and providers of supervision services. (Fam. Code § 3200; Cal. Rules of Ct. 5.20(a).) Once safety is ensured, the child's best interest is paramount, especially in deciding the manner of supervision. (Fam. Code § 3200; Cal. Rules of Ct. 5.20(a).)

The rules apply to all providers of supervised visitation, whether the provider is paid or volunteers, whether he or she is a relative, friend, paid independent contractor, or works through a supervised visitation agency or center, unless otherwise specified. (Cal. Rules of Ct. 5.20(a).)

The rules describe two kinds of supervised visitation providers: nonprofessional or professional. (Cal. Rules of Ct. 5.20(c)-(e).)

Nonprofessional provider. A nonprofessional provider is anyone not paid for providing the supervised visitation services. (Cal. Rules of Ct. 5.20(d)(1).) Unless otherwise ordered by the court or stipulated by the parties, a nonprofessional provider should (Cal. Rules of Ct. 5.20(d), (i)):

• Be 21 years of age or older;
• Have no driving under the influence conviction within the last 5 years;
• Not have been on probation or parole for the last 10 years;
• Have no record of a conviction for child molestation, child abuse, or other crimes against a person;
• Have proof of automobile insurance, if transporting the child;
• Have no civil, criminal, or juvenile restraining orders within the last 10 years;
• Have no current or past court orders in which the provider is the person being supervised;
• Not be financially dependent on the person being supervised;
• Have no conflict of interest; and
• Agree to adhere to and enforce the court order regarding supervised visitation.

Professional provider. A professional provider is any person paid for providing supervised visitation services or an independent contractor, employee, volunteer, or intern operating independently or through a supervised visitation center or agency. (Cal. Rules of Ct. 5.20(e).) A professional provider should meet the same conditions required of a nonprofessional provider, except for the condition that he or she not be financially dependent on the person being supervised. In addition, a professional provider must speak the language of the child and the party being supervised or provide a neutral interpreter over the age of 18, meet certain training requirements, and sign a declaration stating all requirements have been met. (Cal. Rules of Ct. 5.20(e).)

3. Responsibilities of Supervised Visitation Providers

All providers must make every reasonable effort to ensure the safety of all parties during the visitation. (Cal. Rules of Ct. 5.20(g).) Professional providers must (see Cal. Rules of Ct. 5.20(f)-(h)):

· Receive certain types of training;

· Institute certain safety and security procedures;

· Maintain detailed records of visitation;

· Enforce the terms and conditions of visitation; and

· If necessary, suspend or terminate visitation.

All providers, including nonprofessional providers, are bound by conflict-of-interest rules that prohibit (Cal. Rules of Ct. 5.20(i)):

• Financial dependence on the person being supervised;
• Being an employee of the person being supervised;
• Being in an intimate relationship with the person being supervised; and
• Being an employee of the court that orders the supervision unless specified in the employment contract.

In addition, providers must not allow discussion of the court case or possible outcomes during supervision, nor may providers take sides with any of the parties. (Cal. Rules of Ct. 5.20(l).) There is no confidential privilege during supervision. Providers are bound to report any suspected child abuse to appropriate authorities. (Cal. Rules of Ct. 5.20(k), (n).)