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Who Gets Custody in California?

Like most states, the standard for child custody determinations in California is the overall best interest of the child with an emphasis on ensuring the "health, safety, and welfare" of the child and "frequent and continuing contact" with both parents absent child abuse, domestic violence, or where the contact would not be in the best interest of the child as provided in California Family Code Section 3011 (See also California Family Code Sections 3011, 3020, 3040, 3080).

Making custody determinations is a common challenge for family courts. Parents, grandparents, stepparents, or any person who believes that he or she can provide suitable care and guidance to the child may petition for child custody. So how does a California family court or judge handle competing persons seeking custody of the child? According to California Family Code Section 3040, child custody should be granted in an order of preference and according to the best interest of the child. The court looks first to grant custody to both parents jointly or to either parent before looking to grant custody to other persons. However, California does not currently establish a preference or a presumption for or against joint custody arrangements. Instead, the state allows the family court or judge to make the parenting arrangement decision on a case-by-case basis according to what it believes reflects the overall best interest of the child. If neither parent is granted custody, the court may look to the person with whom the child has been living and the stability of that environment, and then to any person deemed by the court to be able to provide appropriate care for the child. In short, consistent with the best interest of the child, the court will typically look first to grant child custody to the parents. If they are deemed unfit, the court will then look to other persons, again consistent with the best interest of the child.

If you are involved in a custody battle with the child's other parent, grandparent, stepparent, or any other person, you would be wise to consult a California family law attorney to help you learn where you stand legally and what your legal options are with respect to your child custody and visitation rights.


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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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