Can I move out of state with my child without a custody order in California?

What the law says

Family Code section 3010(a): “The mother of an unemancipated minor child and the father, if presumed to be the father under Section 7611, are equally entitled to the custody of the child.” Section 7611 lists who is presumed, including a parent married to the mother when the child was born, a parent who signed a voluntary declaration of parentage, and a parent who received the child into their home and openly held the child out as their own. A father who fits none of these is not covered by that sentence, so parentage comes first.

Penal Code section 278.5(a) applies to anyone who “takes, entices away, keeps, withholds, or conceals a child and maliciously deprives a lawful custodian of a right to custody, or a person of a right to visitation.” Section 277(e) defines a right to custody to include one held “in the absence of a court order, by operation of law,” while section 277(h) defines visitation as time allotted by court order, and section 278.5(c) says a custody order obtained afterward is not a defense. Section 278.7 excepts a parent with a good faith and reasonable belief that the child would suffer immediate bodily injury or emotional harm, but that parent must report to the district attorney of the county where the child lived and start a custody case within a reasonable time, which section 278.7(d) says is at least 10 days for the report and at least 30 days for the case.

Under Family Code section 3421(a)(1), a California court can make the first custody order if California was the child’s home state within six months before the case is filed and a parent still lives here. Section 3402(g) defines home state as where the child lived with a parent for at least six consecutive months.

• Family Code section 3010 (leginfo.legislature.ca.gov)
• Family Code section 7611 (leginfo.legislature.ca.gov)
• Penal Code section 277 (leginfo.legislature.ca.gov)
• Penal Code section 278.5 (leginfo.legislature.ca.gov)
• Penal Code section 278.7 (leginfo.legislature.ca.gov)
• Family Code section 3421 (leginfo.legislature.ca.gov)

What to do next

If you and the other parent agree on the move and a schedule, put it in writing and ask a judge to sign it as an order. If you do not agree, ask the court for custody orders before you move, so the question is decided by a judge rather than by the move.

• California move-away guide
• Do I have to tell my ex before I move with our child?
• Parents’ rights in a California custody case