Like most states, the standard for child custody determinations in California is the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child and “frequent and continuing contact” with both parents. This is especially true when there are no issues of child abuse, domestic violence, or where the contact would not be for the best interest of the child. (Family Code (FC) 3011, 3020, 3040, 3080)

Child custody is also granted in an order of preference and according to the best interest of the child (FC 3040).  The challenge for the court is to decide who will get custody of the child. The parents, grandparents, stepparents, or an individual who believes they can provide suitable care and guidance to the child may petition the court for custody.

The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. If the parents are unable to agree on child custody and visitation, the court then must decide on a case-by-case basis according to what it believes reflect the overall best interest of the child. If neither parent is granted custody, then the court can examine other relatives or persons in whom the child has had a relationship with and the stability of that environment.

What is the best interest of the child standard? FC 3011 list several factors that court uses in determining what is the best interest of the child.  The health, safety, and welfare of the child are closely scrutinized. Any history of abuse by one parent or any person seeking custody is another. A prerequisite to the consideration of allegations of abuse, the court may require substantial independent corroboration.

Such independent reports would be including but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public or private organizations providing services to victims of sexual assault or domestic violence.

The nature and amount of contact with both parents are examined. The habitual or continual illegal use of controlled substances and or alcohol by either parent and before the court may consider such allegations, it may require independent corroboration. Written reports from law enforcement agencies, court, medical facilities, rehabilitation facilities, probation departments, organizations that work with substance abuse victims are generally credible evidence used to affirm such allegations.

Where allegations about a parent physically or sexually abusing a child and/or substance abuse, the court shall state its reasons in writing or on the record, for its order of sole or joint custody.

How does the court determine the best interest of the child standard upon its review of health, safety, and welfare of the child? This factor is the primary concern in determining the best interest of the child when making orders of physical or legal custody or visitation of children.  Absent child abuse, domestic violence, or where the contact would not be the best interest of the child, the family court must promote frequent and continuing contact with both parents.

The Legislature’s intent in FC 3020 is to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship.  The family court must encourage parents to share the rights and responsibilities of child rearing in order to effectuate this policy, except where contact would not be in the best interest of the child.

The child’s welfare, both emotionally and physically, are paramount in determining physical and legal custody and visitation.  Custody “battles” could be done with very little court intervention or it could mean going to trial.  So before you engage in the “battle,” be sure to discuss all your options and your concerns with an experienced attorney.

Stay tuned, next week I will discuss the general concepts of modifying child custody or visitation orders. Any questions, feel free to email me directly at [email protected].

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