Judges evaluating custody cases in California must consider the best interests of the children in reaching a conclusion about how parents will share time with the children. Both parents begin with equal rights to custody; a judge is not permitted to give a preference to either parent based upon the parent’s sex. In determining a child’s best interests, California law specifies two guiding policies:
- the health, safety, and welfare of children must be a court’s primary concern, and
- children benefit from frequent and continuing contact with both parents.
Within the parameters of these two policies, a judge may consider any factor relevant to parenting, taking into account all the circumstances of each individual case.
Health and Safety
California courts must consider certain factors that affect a child’s health and safety. For example, judges may not grant custody or visitation to the father of a child who was conceived as a result of the father’s rape of the mother. The law also prohibits judges from granting custody or unsupervised visitation to a parent who has committed first degree murder of the child’s other parent or has been convicted of certain types of physical or sexual child abuse, unless the judge finds that the parent’s history does not pose a risk to the child and explains the reasons for this in writing. A court may also limit custody or visitation for a parent who has engaged in child or partner abuse that hasn’t resulted in a court conviction, as long as the abuse is independently corroborated by a reliable source, such as a child protective agency.
Habitual or continual illegal drug use or alcohol abuse are also factors relating to a child’s health and safety. This factor may also require independent corroboration, such as a written report from a state agency or a medical or other rehabilitation facility.
California law requires courts to consider the wishes of a child who is mature enough to make an intelligent choice regarding custody. The law does not specify any particular age, but the older and more mature a child is, the more likely a judge is to give substantial weight to the child’s opinion.
California courts must also consider which parent is more likely to encourage a positive relationship, including frequent and continuing contact, between the child and the other parent. Judges view very unfavorably any parent whose actions interfere with the child’s relationship with the other parent. In particular, if a parent is found to have knowingly made an unfounded allegation of sexual abuse against the other parent with the intent to interfere with that parent’s contact with the child, the court may restrict the custody or visitation of the accusing parent.
Continuity and Stability
Judges favor maintaining stability and continuity in a child’s environment, including maintaining established patterns of care and protecting emotional bonds with a primary caretaker. Judges will also keep siblings together except in extraordinary circumstances.
Custody consists of both legal custody, which refers to a parent’s authority to participate in major decisions affecting a child’s health, education, and welfare; and physical custody, which refers to the child’s physical presence with a parent. Joint physical custody means that each parent has significant periods of physical custody, but not necessarily an equal amount of time with the child. A judge awarding joint legal custody may or may not also order joint physical custody, and parents may agree to joint legal custody without agreeing to equal, or even approximately equal, physical custody.
California law favors joint physical and legal custody when both parents agree to it. If they don’t agree, there is no starting presumption either for or against joint custody. Instead, the court has the widest discretion possible to design a parenting plan that is in a child’s best interests. Nevertheless, a judge who does not order joint custody in any case where either parent has requested it must provide a written explanation for the decision.
Parents have the opportunity to develop their own parenting arrangements with respect to both legal and physical custody, and California law requires parents who are unable to reach an agreement to attend mediation prior to participating in a contested court procedure. If they are still unable to agree, a judge will determine custody.