Understanding Non-Offending Parent Placement Under WIC §361.2 in California

When Child Welfare Services (CWS) removes a child from one parent’s home due to abuse, neglect, or endangerment, many families are left in chaos. The immediate question becomes: where will the child go?

In California, the law strongly favors placing a removed child with the non-offending parent whenever possible—rather than placing the child in foster care or with a relative. This process is governed by Welfare and Institutions Code §361.2, a critical provision that can help a safe parent gain custody during a juvenile dependency case.

If you are the non-accused parent—or if you’re being investigated and worried that your child might be removed—you need to understand how this rule works, how it impacts custody rights, and what to expect in court. This guide explains your legal rights, your responsibilities, and the best way to protect your parenting relationship during and after CWS removal.

Why Does CWS Remove Children?

CWS (also referred to as CPS in some counties) is legally obligated to investigate reports of child abuse or neglect. These reports can come from schools, doctors, neighbors, law enforcement, or even the other parent. If CWS determines that a child is at immediate risk of harm, they may remove the child from the parent’s home—without a warrant in emergency situations—and place the child in protective custody.

Reasons for removal may include:

• Physical or sexual abuse

• Severe neglect

• Substance abuse in the home

• Domestic violence

• Medical neglect or failure to provide basic needs

Once a child is removed, CWS files a petition under Welfare and Institutions Code §300, triggering a juvenile dependency case. A detention hearing is typically held within 48 hours to determine whether removal was appropriate and where the child should go.

What Is a Non-Offending Parent?

A non-offending parent is the parent who is not alleged to have abused or neglected the child. This parent may or may not have had custody prior to the CWS referral. In many cases, the non-offending parent is the non-custodial parent under a family court order or has limited visitation.

Being the non-offending parent gives you a powerful legal position. Under California law, the court must consider placing the child with you before exploring other options like foster care or relative placement. However, it’s not automatic—you still have to prove that your home is safe, stable, and suitable.

WIC §361.2: Placement With a Non-Offending Parent

Welfare and Institutions Code §361.2 is the guiding statute for what happens when one parent loses custody during a dependency case. It states:

If a child is removed from the custody of a parent or guardian, and the other parent did not cause the need for removal, the court shall place the child with the noncustodial parent unless that placement would be detrimental to the safety, protection, or physical or emotional well-being of the child.

This means that the court must place the child with the non-offending parent unless there is a good reason not to. The burden is on CWS or the other party to show why placement with you would be inappropriate.

If the court finds no risk of harm, you may be granted:

• Temporary physical custody

• Joint or sole legal custody

• A parenting plan approved by the court

Once this happens, you become the child’s primary caregiver for the duration of the dependency case.

How Do You Prove You’re Safe and Suitable?

The court will consider several factors when evaluating whether a non-offending parent can safely take custody. You’ll need to show that:

• You have a stable home environment

• You can provide for the child’s daily needs

• You are not implicated in the abuse or neglect allegations

• You are not exposing the child to harmful individuals

• You are willing to support the child’s emotional and developmental needs

• You can comply with court orders and work with the social worker

You may also be asked to:

• Submit to a background check

• Participate in a home inspection

• Provide proof of employment or income

• Attend court hearings regularly

• Cooperate with a case plan, even if you’re not the accused parent

If you meet these requirements, you have a strong chance of gaining custody under §361.2.

Can You Get Custody if You Didn’t Have It Before?

Yes. One of the most important aspects of §361.2 is that it applies regardless of prior custody status. Even if you previously had no custody or only limited visitation, you may be awarded temporary or full custody during a dependency case if you’re the non-offending parent.

This can be a life-changing opportunity—especially if your child was previously living full-time with the other parent and that parent is now the subject of CWS concerns. However, you will need to act quickly and assert your parental rights through the court.

What Happens After Placement?

Once the child is placed with you as the non-offending parent, several things can happen:

1. The court may order ongoing services or monitoring to ensure the child’s safety.

2. You may be required to support visitation with the other parent if allowed.

3. If the dependency case is dismissed, the court may issue an “exit order” granting you legal and physical custody.

4. If the other parent is working toward reunification, you may be involved in a co-parenting plan or transition process.

In some cases, placement with the non-offending parent becomes permanent. In others, it is temporary while the other parent works through their reunification plan. Either way, your role becomes central to the child’s care.

Can the Other Parent Get the Child Back?

Yes—if the court finds that the other parent has completed their case plan and can provide a safe home, the child may return to their custody. This is called family reunification and is a core goal of California’s dependency system.

If you’re the non-offending parent, and you oppose reunification, you’ll need to present evidence to the court that returning the child would be detrimental. This may include:

• Continued instability or lack of compliance by the other parent

• Poor performance in visitation or services

• Expert testimony (therapist, evaluator)

• Safety concerns or ongoing conflict

Ultimately, the court’s priority is the child’s well-being, not parental preferences.

What If You’re Not in Contact With Your Child?

If your child was removed and you were not the custodial parent, you may not even be aware of the CWS investigation until after removal. In these situations, assert your parental rights immediately.

Steps to take:

• Contact the juvenile court and ask to be included in the case

• File a Request to Change Custody under WIC §361.2

• Retain a dependency attorney to represent you

• Attend all hearings and communicate with the assigned social worker

• Provide proof of your relationship with the child and your ability to care for them

You have the right to participate in the dependency case and to seek placement if you are a legal parent. Do not delay—early action increases your chances of success.

What If You’re Not on the Birth Certificate?

Even if you’re not on the birth certificate, you may still be able to assert parental rights through a paternity action. You may need to:

• File a parentage petition in family court

• Submit to DNA testing

• Establish legal parent status before seeking custody in juvenile court

Once you are legally recognized as the child’s parent, WIC §361.2 protections apply to you as well.

Exit Orders and Long-Term Custody

If the dependency case is closed and the child is placed with you, the court will issue an exit order under WIC §362.4. This order governs custody and visitation after the dependency case ends and becomes enforceable in family court.

The exit order may:

• Grant you sole or joint legal custody

• Provide a structured visitation schedule for the other parent

• Include restraining orders or communication limits if needed

• Set future conditions for modification (e.g., therapy completion)

These orders often become the baseline for future family court litigation and are difficult to modify without proof of changed circumstances.

Final Thoughts

If your child has been removed from the other parent’s care due to abuse, neglect, or unsafe conditions, you may be the best and safest option for placement. California law under WIC §361.2 gives you a strong legal foundation to seek custody—even if you didn’t previously have it.

At Minella Law Group, we help non-offending parents in San Diego assert their rights, secure custody, and support their child through difficult transitions. Whether you’re trying to prevent foster care or looking to protect your long-term parental role, we can guide you through every step.

Take Action to Protect Your Child

If your co-parent is under investigation or your child has been removed, don’t wait. Your rights—and your child’s future—depend on fast, informed action.

📞 Call Minella Law Group today at 619-289-7948 to schedule a confidential consultation with one of our family law specialists. We’ll listen to your concerns, assess the situation, and create a clear strategy tailored to your goals.

📝 Prefer email? Fill out our online contact form and a member of our legal team will get in touch with you promptly.

We’ll help you step in and step up—because your child deserves stability, and you deserve a fair chance to provide it.