How do California courts decide child custody and visitation?

California judges decide custody and visitation on the child's best interest, and the law makes the child's health, safety and welfare the court's primary concern (Family Code §§ 3011 and 3020). There is no preference for joint or sole custody and no age at which a child automatically goes to one parent (§ 3040(e)). When parents disagree, the court must first send them to mediation (§ 3170), which in Orange County is confidential: if the parents do not agree, the mediator does not make a recommendation to the judge.

This page explains how custody cases work in Orange County, what the judge weighs, and the questions Persian-speaking parents raise most often: travel to Iran, a child who recently came from another country, and the age at which a child's wishes count. Custody is one of the family law areas listed on the practice areas page, and it is often decided inside a divorce case, but parents who were never married can ask for custody orders too.

Legal custody, physical custody and visitation

California splits custody into two parts. Legal custody is the right to make decisions about the child's health, education and welfare. Physical custody is where the child lives. Either can be joint (shared) or sole (one parent). The parent who has the child less than half the time has visitation, usually set out in a detailed schedule of weekdays, weekends, holidays and exchanges. A parenting plan is the written agreement that captures all of this; once a judge signs it, it becomes an enforceable court order.

The law's starting policy is that children should have frequent and continuing contact with both parents after separation, unless that contact would not be in the child's best interest (§ 3020(b)). When that policy conflicts with the child's safety, safety wins (§ 3020(c)).

How a custody case works in Orange County, step by step

1. Open or use a case. Custody orders can be requested in a divorce, legal separation, annulment or parentage case. Married parents who only need custody and support orders can file a Petition for Custody and Support of Minor Children (FL-260). If the parents were not married, parentage must be established before the court can make custody, visitation or support orders. Family cases in Orange County are heard at the Lamoreaux Justice Center, 341 The City Drive South, Orange. The divorce page covers the case itself.
2. Tell the court about the children. A Declaration Under the Uniform Child Custody Jurisdiction and Enforcement Act (FL-105) lists where the children have lived during the last five years and with whom (Family Code § 3429(a)). California can make a first custody order only on the grounds in § 3421, mainly when California is the child's home state when the case starts, or was within six months before and a parent still lives here (§ 3421(a)(1)).
3. Ask for orders. If the parents agree, they can file a signed agreement for the judge to approve. If not, a parent files a Request for Order (FL-300) to get a hearing date.
4. Go to mediation. When custody or visitation is contested, the court must set the issues for mediation (§ 3170(a)). In Orange County, Family Court Services (FCS) runs it. Before the appointment, each parent completes the Mediation Intake Form and watches the orientation video, which FCS offers in Farsi as well as English and other languages. FCS schedules appointments by Zoom; a parent whose technology does not allow a remote appointment can call FCS at (657) 622-6196 to ask for one in person. Mediation is at no cost, attorneys do not sit in, and interpreters are provided free.
5. Agreement or no agreement. If the parents agree, the mediator writes up a proposed parenting plan, and once the judge approves it, it becomes a court order. If they do not, the mediator makes no custody recommendation, the discussions stay confidential, and the judge decides the open issues at the hearing.
6. Investigation, if ordered. In harder cases the judge can order a Child Custody Investigation, which produces a report with parenting plan recommendations, or an Emergency Investigation when there is an immediate risk. Orange County FCS generally interviews children 12 or older when an interview is ordered or appropriate. These services are not confidential the way mediation is, and some carry fees.
7. The order. The judge's decisions are usually set out on a Child Custody and Visitation Order Attachment (FL-341). Every custody order must state the basis for the court's jurisdiction, how notice was given, each parent's custody and visitation rights, a warning that violations may bring civil or criminal penalties, and the child's country of habitual residence (§ 3048(a)).
8. Changes later. To change an existing order, a parent files a Request for Order in the same case, and the court sets any required mediation and a hearing.

What changes the answer?

• Domestic violence. If the court finds that a parent seeking custody committed domestic violence against the other parent, the child or certain others in the past five years, there is a rebuttable presumption that giving that parent sole or joint custody is against the child's best interest (§ 3044(a)). The parent can overcome it only by a preponderance of the evidence and specific findings, such as completing a batterer's program (§ 3044(b)). A criminal domestic violence conviction can supply the finding (§ 3044(d)); the domestic violence page covers the criminal case.
• The child's wishes. If a child is old enough to form an intelligent preference, the court must consider it and give it due weight (§ 3042(a)). A child 14 or older who wants to address the court must be allowed to, unless the judge finds it is not in the child's best interest and says why (§ 3042(c)); younger children may be heard when appropriate (§ 3042(d)). A child is never required to state a preference (§ 3042(i)).
• Which parent supports the relationship. When the court gives custody to one parent, it considers which parent is more likely to allow the child frequent and continuing contact with the other (§ 3040(a)(1)).
• Immigration status. A parent's immigration status does not disqualify them from custody (§ 3040(b)). This office does not give immigration advice; a separate immigration attorney should be consulted on status questions.
• Where the child has lived. For a child who recently arrived from Iran or another country, whether a California court can make the first custody order turns on § 3421, and the answer depends on dates and facts.
• Risk of abduction. When there are signs a child may be taken, the court must consider the factors in § 3048(b)(1), such as past threats, weak ties to California, or planning steps like selling a home or buying tickets. Strong ties to another country, including foreign citizenship, count only if evidence supports another factor (§ 3048(b)(1)(D)).
• A pending criminal case. Release conditions in a criminal case can also limit travel; the bail hearings page explains how release works.

Travel to Iran and abduction prevention

Many families in Orange County visit relatives in Iran, and most trips are ordinary. The law gives tools for the cases where one parent fears the child will not come back. If the court finds a need for preventive measures, it can order supervised visitation, a bond, limits on taking the child out of the county, state or country, surrender of passports, a ban on applying for a new or replacement passport, notice to a foreign consulate or embassy, a matching order from the other country before travel, and proof of return plans such as the itinerary, round-trip tickets and contact details (§ 3048(b)(2)). During a divorce, the Summons already bars both parents from taking the children out of California or applying for their passports without written consent or a court order (§ 2040(a)(1)).

One more fact matters for travel planning. The Hague Convention on the Civil Aspects of International Child Abduction provides a return procedure between the countries that have joined it, and Iran is not listed among its Contracting Parties on the Hague Conference's status table (checked October 25, 2026). That is why prevention, set out clearly in the order before any trip, carries so much weight in these cases.

A worked example

For example, take a hypothetical father, Dariush, in Mission Viejo. He and the mother separated last year and share their 9-year-old daughter under an informal schedule. The mother wants to take the girl to Tehran for a month in the summer to see her grandparents. Dariush is not against the visit in principle, but the mother recently said she might "stay a while", and he is worried.

His attorney files a Request for Order asking for a written parenting plan and travel terms. Both parents complete the FCS intake form, and each watches the orientation video, the mother in Farsi. In mediation they may agree on a schedule and travel conditions: a set itinerary, round-trip tickets shown in advance, contact details in Tehran, and the passport held by one parent between trips. If they do not agree, the mediator makes no recommendation, and the judge decides at the hearing after weighing the § 3048 factors on the evidence each side presents. The judge could allow the trip with conditions, allow a shorter trip, or decline it; the result depends on the facts, and nobody can promise one in advance. Whatever the judge orders must also identify the child's country of habitual residence (§ 3048(a)(5)).

Common mistakes

• Traveling abroad with the child without written consent or an order. During a divorce, the automatic orders on the Summons forbid it, and it damages trust with the court.
• Coaching the child before an interview. FCS tells parents not to coach the child or question them afterward, and not to listen in.
• Emailing the mediator directly. FCS does not accept one-sided communications; documents go only where FCS instructs.
• Skipping the intake form or orientation video. It delays mediation.
• Assuming a fixed custody age. California has no age at which a child automatically goes to the mother or father; the test is the child's best interest.
• Treating a domestic violence allegation as a side issue. A finding under § 3044 changes the starting point of the whole custody case.

What to do this week

1. Write down the current schedule: who has the child which days, and who handles school and medical decisions.
2. List every address where the child has lived for the past five years, with dates, for the FL-105.
3. Collect school records, medical contacts and any messages about the schedule or travel.
4. If travel abroad is planned or feared, gather passport details and any tickets, and do not travel until there is written consent or an order.
5. If there has been violence or threats, keep any police reports or protective orders together, and put safety first.
6. Read about the attorney on the about page.
7. Book a meeting through the contact page before you file or answer anything.

Questions clients ask about custody

• Worried the other parent will take your child to Iran? Abduction prevention orders in California
• Moved to California with your children from Iran or another country: which court decides custody?
• At what age can a child choose which parent to live with in California?
• Custody dispute in Orange County: what happens in court-ordered mediation?
• Can a parent move away with a child in California?
• How do you get a domestic violence restraining order in Orange County?
• Served with a request for a domestic violence restraining order in California: how do you respond?
• Can a California custody or support order be changed later?

For a custody case in San Diego County, read our San Diego County page.

Frequently asked questions

Does the mother automatically get custody in California?

No. The law sets no preference for either parent and no preference for joint or sole custody (§ 3040(e)). The court decides on the child's best interest, and it may not consider a parent's sex (§ 3011(b)).

At what age can my child decide?

No age lets a child decide alone. A child mature enough to form an intelligent preference has that preference considered (§ 3042(a)), and a child 14 or older may address the court unless that is not in the child's best interest (§ 3042(c)).

Is Orange County custody mediation confidential?

Yes, except where the law requires disclosure. If parents do not reach agreement, the mediator does not make a custody or visitation recommendation; investigations and child interviews are different and can be reported to the court.

Can I take my child to Iran during the case?

In a divorce or separation case, not without the other parent's written consent or a court order (§ 2040(a)(1)). A custody order can also set specific travel conditions under § 3048.

Does custody affect child support?

Yes. The time each parent has the child is one of the inputs in the guideline formula; the support page explains it.

Can a prenup or the marriage contract decide custody?

No agreement signed before the case replaces the court's best-interest decision, and a premarital agreement cannot harm a child's right to support. The premarital agreements page covers what those agreements can do.

The Law Office of Sourena Sarbazevatan represents people in Orange County and San Diego in child custody and visitation matters, in English and Persian (Farsi). Call (949) 591-9596 or use the contact page.