Family Law Blog · Custody and Visitation

The Child Custody and Visitation Standards California Family Courts Apply

The Best Interest of the Child Standard

<a href=”https://www.dsweeneylaw.com/legal-custody-physical-custody-visitation/”>Legal Custody, physical custody and visitation decisions are broadly governed by the best interest of the child. Family Code section 3011 sets forth the factors the court must consider. The standard is intentionally flexible, giving judicial officers broad discretion.

Family Code Section 3011: The Core Factors

The court considers health, safety, and welfare of the child; history of physical or sexual abuse; nature and amount of contact with both parents; habitual substance abuse by either parent; and criminal convictions including domestic violence and child abuse.

Family Code Section 3020: Public Policy on Custody

Family Code Section 3020 declares California’s policy of assuring children’s health, safety, and welfare as the primary concern, and that frequent and continuing contact with both parents is generally in the child’s best interest. When safety and contact conflict, safety prevails.

Family Code Section 3044: Domestic Violence Presumption

Family Code Section 3044 creates a rebuttable presumption against an award of custody to a parent who has been found to have perpetrated domestic violence against the other parent or minor child within the past five years. This presumption is powerful and can significantly affect custody outcomes.

Family Code Section 3048: Risk of Abduction

When there is abduction risk, the court considers prior order violations, threats to take the child, lack of financial ties to the area, history of instability, domestic violence, and strong ties to another area. Under Family Code Section 3048, the court can make a number of orders to minimize the abduction risk, including supervised visitation, posting bond, restricting travel rights, requiring the surrender of passports and registering the California orders in other localities.

Family Code Section 3042: Child’s Preference

Family Code section 3042 requires the court to give consideration to the child’s wishes if the child is of sufficient age and capacity to form an intelligent preference. There is no specific age that determines when a child’s preference controls. Courts view attempts to influence a child’s testimony very negatively.

Additional Code Sections

Family Code section 3010 establishes that each parent is entitled to equal custodial rights. When one parent passes, the other parent is entitled to custody of the child.

Family Code section 3111 governs custody evaluator appointments.

Family Code section 3170 requires court-sponsored mediation before contested custody and visitation hearings.

Disclaimer: This article on California family law is published for informational purposes and does not constitute legal advice. Family law issues are fact-specific and complex. Consult with a licensed family law attorney for specific advice about your case.

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Frequently Asked Questions

What is the “best interest of the child” standard in California?

The best-interest-of-the-child standard is the legal yardstick California family courts use to make custody and visitation decisions. It is intentionally flexible, giving judicial officers broad discretion. Family Code section 3011 sets out the specific factors a court must weigh, and Family Code section 3020 declares California’s public policy that the child’s health, safety, and welfare are the primary concern.

What factors does a California court consider in a custody decision?

Under Family Code section 3011, the court considers the child’s health, safety, and welfare; any history of physical or sexual abuse by a parent; the nature and amount of contact with both parents; habitual substance abuse by either parent; and certain criminal convictions including domestic violence and child abuse. Each factor is fact-specific and applied to the family’s particular circumstances.

Does California favor mothers in custody cases?

No. California law does not favor mothers or fathers. Under Family Code section 3010, each parent is entitled to equal custodial rights. Custody decisions turn on the best-interest factors in Family Code section 3011, applied without regard to gender. Older stereotypes such as the “tender years” doctrine were eliminated decades ago in California.

What is Family Code section 3011?

Family Code section 3011 lists the core factors a California court must consider when making a custody or visitation decision. These include the health, safety, and welfare of the child; any history of abuse; the nature and amount of contact with both parents; habitual substance abuse; and certain criminal convictions. The statute does not rank the factors; the court weighs them based on the case.

Will a child’s preference affect the custody decision in California?

It can. Family Code section 3042 requires the court to give consideration to the child’s wishes if the child is of sufficient age and capacity to form an intelligent preference. There is no fixed age that controls. Courts also view attempts by a parent to coach or influence a child’s testimony very negatively, and that conduct can backfire on the parent doing it.

Can a custody order be changed after it’s entered?

Yes. A final custody order can be modified upon a showing of a significant change of circumstances affecting the best interest of the child. Temporary orders can be modified more easily. The parent seeking the change files a request for order with the court and must show why the current arrangement no longer serves the child’s best interests.

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