The Best Interest of the Child Standard

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.