AB 1978 adds Section 3040.1 to the California Family Code to create a legal presumption that equal parenting time is in a child’s best interest when both parents are found fit, willing, and able and both live within 25 miles of the child’s primary school. The presumption applies to custody proceedings filed on or after January 1, 2027 and defines “equal parenting time” as a substantially equal division of overnights with each parent receiving no less than 45 percent of overnights annually.
The bill limits courts’ ability to deny equal parenting time: a judge may only overcome the presumption by clear and convincing evidence that equal time would be detrimental to the child, and any denial must be a written decision specifying the evidence relied upon. The provision expressly lists examples (substantiated domestic violence, substance abuse, refusal to support the other parent, logistical barriers) but does not confine the court to that list.
At a Glance
What It Does
Adds Family Code §3040.1 to create a rebuttable presumption in favor of substantially equal parenting time when both parents are fit and live within 25 miles of the child’s primary school; defines equal parenting time as at least 45% of annual overnights per parent and sets a clear-and-convincing standard to rebut the presumption.
Who It Affects
Parents and family law practitioners in California handling custody cases filed on or after January 1, 2027; trial courts that must make written findings; child welfare and domestic violence advocates who will interact with the rebuttal process.
Why It Matters
It shifts the starting point for custody disputes from a judge-led best-interest inquiry to an equal-time presumption in many cases, narrowing judicial discretion and imposing a heightened evidentiary bar for exceptions—potentially changing negotiation dynamics, litigation strategies, and how courts document safety concerns.
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What This Bill Actually Does
AB 1978 changes the way many California custody cases start. Instead of opening with an unconstrained best-interest inquiry, judges must begin with a presumption that equal parenting time is appropriate when two conditions are met: both parents are fit, willing, and able, and both live within 25 miles of the child’s primary school.
That presumption becomes the baseline for any custody order in qualifying cases filed on or after January 1, 2027.
To overcome the presumption, a party must prove—by clear and convincing evidence—that equal parenting time would harm the child. The bill gives examples the court should consider, such as substantiated domestic violence, serious substance abuse or mental-health problems that impair parenting, refusal to support the other parent’s relationship with the child, or logistical impossibilities.
The judge must explain, in a written decision, which evidence supports denying equal time and why it is contrary to the child’s best interest.The statute defines “equal parenting time” in practical terms: a substantially equal split of custodial overnights with reasonable adjustments for school schedules, holidays, and special circumstances, and a floor so each parent receives at least 45 percent of overnights annually. That numeric floor matters because it creates a measurable target for parents and courts, affects how overnights are counted, and will influence calculations tied to custody such as travel plans and potentially child-support negotiations.Because the presumption applies only to cases filed on or after the effective date, ongoing cases remain governed by existing law.
The bill frames its policy reasons in a short findings section—predictability, fairness, and supporting both parents’ relationships with children—but the operative change is procedural: it raises the evidentiary hurdle for judges who want to depart from near-equal shared time in qualifying cases.
The Five Things You Need to Know
The presumption applies only to custody proceedings filed on or after January 1, 2027.
Both parents must be found fit, willing, and able to parent, and both must reside within 25 miles of the child’s primary school to trigger the presumption.
A court may deny equal parenting time only if a party proves by clear and convincing evidence that equal time would be detrimental to the child; the statute lists examples (substantiated domestic violence, substance abuse, refusal to foster the other parent’s relationship, logistical barriers) but is not limited to them.
Any denial of equal parenting time must be a written court order that specifies the evidence relied upon and explains why equal time is not in the child’s best interest.
The bill defines equal parenting time as a substantially equal division of custodial overnights, with each parent receiving no less than 45 percent of overnights annually, allowing reasonable adjustments for school, holidays, and special circumstances.
Section-by-Section Breakdown
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Legislative purpose and guidance to courts
The bill’s findings section states the Legislature’s view that children benefit from equal parenting and that a presumption will promote predictability and cooperation. While nonbinding, these findings signal to judges and practitioners the policy lens the statute intends to impose and may shape judicial interpretation of ambiguous terms such as “fit” or “substantially equal.” Expect litigants to cite the findings when arguing for or against equal time in borderline facts.
Trigger conditions for the presumption
This subsection establishes the two trigger conditions: parental fitness/willingness/capacity and residence within 25 miles of the child’s primary school. Practically, courts will need a record to show both parents meet the fitness standard and to verify distance to the school (documents, declarations, school enrollment records, or maps). The 25-mile geographic cutoff creates a bright-line test but leaves room for disputes about what counts as the child’s "primary" educational institution and how to measure mileage (straight-line vs. driving distance).
Rebuttal standard and enumerated exceptions
The statute raises the bar for denying equal parenting time to clear and convincing evidence and lists several detrimental circumstances (substantiated domestic violence, substance abuse, failure to support the other parent’s relationship, logistical barriers). The high evidentiary standard narrows the typical best-interest inquiry; practitioners will need to present documentary or testimonial evidence meeting that standard. The inclusion of “substantiated” domestic violence implies reliance on prior findings or investigations but does not define the required administrative or judicial source for substantiation.
Written decisions required when denying equal time
If a court departs from the presumption, the judge must issue a written order explaining which evidence supports the denial and why equal parenting time is not in the child’s best interest. That requirement increases the record’s transparency and will shape appellate review because written findings provide the basis for challenges. It also increases the drafting burden on trial courts and may lengthen hearings as judges ensure a sufficient record for a clear-and-convincing determination.
Operational definition of equal parenting time
The statute supplies a measurable definition: a substantially equal split of custodial overnights with adjustments for schedules, holidays, and special circumstances, and a floor requiring each parent to receive at least 45 percent of overnights annually. This numeric floor will drive how parties propose parenting plans and how courts count overnights (calendar vs. weighted days), and it may influence related orders—travel arrangements, school transportation, and temporary custody while disputes are pending.
Applicability and effective date
The final subsection limits the rule to custody proceedings filed on or after January 1, 2027. That creates a clear cutoff for practitioners but also requires careful case intake to determine which standard governs. The statute does not make the presumption retroactive to pending matters, so litigation strategy must account for whether a case is governed by the new presumption or by existing best-interest principles.
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Explore Justice in Codify Search →Who Benefits and Who Bears the Cost
Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Children in intact relationships with two fit, accessible parents — the presumption reduces uncertainty and can increase time with both parents by making near-equal schedules the default where conditions are met.
- Parents who live close to the child’s school and can meet the fitness standard — they gain a favorable starting point in custody disputes and leverage in negotiations to obtain near-equal overnights.
- Family law attorneys specializing in shared parenting — clearer default positions can streamline settlement talks and create predictable demand for plan structuring and enforcement advice.
- Schools and community programs — more predictable, stable parenting schedules may facilitate consistent school involvement and planning for extracurricular activities.
Who Bears the Cost
- Survivors of domestic violence and their counsel — the need to produce "substantiated" evidence and meet a clear-and-convincing standard may make it harder to obtain protective custody arrangements if prior findings are limited or absent.
- Family courts and clerks — judges must issue written decisions when denying the presumption and grapple with new evidentiary determinations, increasing drafting time and potentially extending hearings.
- Parents living farther than 25 miles from the child’s school (including many rural or caregiving parents) — they are excluded from the presumption even where equal involvement would be practical through flexible schedules or travel arrangements.
- Child support administrators and accountants — the 45% overnight floor and different custody allocations will change typical child-support calculations and require operational adjustments.
Key Issues
The Core Tension
The statute pits two legitimate objectives against each other: promoting predictability and equal parental involvement by making near-equal time the default, versus preserving judicial flexibility to tailor custody to the child’s individualized best interests—especially where safety, logistics, or developmental needs argue against strict parity. That trade-off forces courts to choose between a bright-line rule that reduces uncertainty and a case-by-case approach that prioritizes nuanced, safety-focused outcomes.
The bill creates a bright-line presumption but leaves important implementation questions unresolved. The 25-mile geographic cutoff is administratively simple but arbitrary; it disadvantages nonurban families and creates disputes over which educational institution counts as "primary" and how distance is measured.
Similarly, the statute’s reliance on a finding that a parent is “fit, willing, and able” requires courts to develop consistent proof standards and factual inquiries—will a declaration suffice, or does the court need corroborating evidence?
The clear-and-convincing evidentiary bar and the requirement of written findings are double-edged. They aim to protect against unjustified denials of shared time, but they may also create perverse incentives: parties might litigate aggressively to create documentary records (or avoid reporting abusive conduct) that either meet or avoid the higher standard.
The treatment of domestic violence is particularly fraught—the statute favors prior "substantiation," but many survivors lack formal substantiation and could find themselves forced into risky evidentiary fights. Finally, the 45 percent overnight floor produces a numeric target that simplifies enforcement but can make the "best interest" analysis feel mechanical, pressuring courts to favor parity over individualized assessments of the child’s needs.
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