What Can I Do if My Ex With Sole Custody Disappeared With Our Kids in California?

Attorney Answer

Six weeks with no contact from a parent who has your children is a real emergency, and California family courts have a process for exactly this situation. The fact that your girlfriend legally has sole custody does not erase your ability to go back to court right now, especially since you have both been living together as a family since that order was made.

You can ask for an emergency order, but the standard is narrow. Family Code section 3064(a) is a limit, not a grant: the court must refrain from making or modifying a custody order on an ex parte basis unless you show immediate harm to the child or immediate risk that the child will be removed from the State of California. A move that has already happened, by the parent who holds sole custody, ordinarily is neither of those. If you have facts showing the children are in danger right now, put them in a sworn declaration and ask for ex parte relief. If you do not, the right vehicle is a noticed request for order to modify custody in the court that made the original order, and an ex parte filing is not a substitute for it.

The two years you lived together matters. Courts decide custody based on the children's best interests (Family Code section 3011), and a judge can consider that the family's actual living situation changed significantly after the original order. This supports a request to modify custody, not just to locate the children.

You already did the right first step. A welfare check through local police is exactly what should happen when a parent cannot be reached. Ask the responding department for a case or incident number so your attorney can reference it.

What to do now:

1. File a request for order to modify custody with the family court that issued the original custody order. Ask specifically for temporary custody or a required check-in schedule while the case is pending, and seek ex parte relief only if you can make the immediate-harm or immediate-removal showing Family Code section 3064(a) requires. 2. If the children may be with relatives in another state, California's Uniform Child Custody Jurisdiction and Enforcement Act, Family Code section 3400 and following, still gives your original court authority, so file there rather than starting over elsewhere. 3. Keep a written timeline of every contact attempt, the welfare check, and any responses you receive. 4. Contact a family law attorney immediately. Interstate cases with an unreachable parent move quickly and benefit from experienced help.

Do not attempt to pick up the children yourself from another state without a court order authorizing it, since that can create serious legal problems even with good intentions.

This is general legal information, not legal advice. A California family law attorney can file emergency paperwork on your behalf and advise you based on the complete history of your case.