The Code makes clear that custody and visitation determinations are to be made from the standpoint of the child's best interest (consistent with the § 3020 policies.. [Ca Fam § 3011, § 3020, § 3040, § 3041] The equities, feelings and desires of the contesting parties are only a factor to the extent they affect the child's best interest.
In making the "best interest" determination, the court can consider any "relevant" factors. [Ca Fam § 3011] The court "must look to all the circumstances bearing on the best interest of the minor child."
However, among all the relevant factors, trial courts must consider the following: (Ca Fam § 3011):
Child's Health, Safety, And Welfare: A "best interest" determination must take into account the child's health, safety and welfare. [Ca Fam § 3011(a); see also Ca Fam § 3020(a),(c)] This is a paramount policy concern.
History Of Physical Abuse: The court must also consider any history of abuse by one parent or any other person seeking custody against (Ca Fam § 3011(b)) the child, the person seeking custody, or the current spouse.
As a prerequisite to consideration of allegations of physical abuse, the court may require "substantial independent corroboration" . . . including, but not limited to, written reports by law enforcement agencies, child protective services, etc.
Certain violent crimes restrict custody or unconditional visitation awards:
Registered Sex Offender Or Child Abuse Conviction: Neither custody nor unsupervised visitation may be awarded to a parent or any other person who either (i) is required to be registered as a sex offender under Ca Penal § 290 where the victim was a minor, or (ii) has been convicted of specified child abuse offenses (under Ca Penal § 273a, § 273d or § 647.6) . . . unless the court finds there is "no significant risk to the child" and states its reasons in writing or on the record. [Ca Fam § 3030(a)]
Child Conceived By Rape: Without exception, no person convicted of rape pursuant to Ca Penal § 261 may be granted custody or visitation with respect to a child conceived by that act of rape. [Ca Fam § 3030(b)]
History Of Drug And Alcohol Abuse: In determining the child's best interest, trial courts must also consider either parent's "habitual or continual illegal use of controlled substances" (as defined in Ca Hlth § S § 11000 et seq.) or "continual abuse of alcohol." [Ca Fam § 3011(d)]
Before considering allegations of a parent's drug or alcohol abuse, the court may require "independent corroboration"-- such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. [Ca Fam § 3011(d)]
Stability And Continuity Of Environment: Although not reduced to express statutory terms, a significant component of the "best interest" assessment is the policy goal of protecting a stable custody arrangement. "As we have repeatedly emphasized, the paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker--weigh heavily in favor of maintaining ongoing custody arrangements." [Marriage of Burgess (1996) 13 Cal.4th 25, 32-33, 51 Cal.Rptr.2d 444, 449-450 (emphasis added); see Burchard v. Garay (1986) 42 Cal.3d 531, 538, 229 Cal.Rptr. 800, 804-805]
Separation Of Siblings: California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. [Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815, 105 Cal.Rptr.2d 923, 927-998]
Note: This is, by no means, a complete listing of all of the factors the court may decide to take into consideration in making a custody award. The court has very broad discretion to consider any evidence relevant to the "best interests of the child."
Joint or sole custody may be awarded based on the best interests of the child and other factors that include 1) the preference of the child, 2) the desire and ability of each parent to allow an open and loving relationship between the child and the other parent, 3) the child's health, safety and welfare, the nature and contact with both parents and 4) the history of alcohol and drug use. Marital misconduct may be considered.
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"A Plain English Guide to Protecting Your Children"
Mary L. Boland, Attorney at Law
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