California Child Custody Laws
Arlene D. Kock, Esq.
Who Gets Child Custody in California?
Like most states, the standard for child custody determinations in California is found in the Family Law Code and is designed to establish the overall best interest of the child with an emphasis on assuring 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 the California Family Code section 3011 (See California Family Code Section 3011, 3020, 3040, 3080. Further, 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.
DOMESTIC VIOLENCE AND CUSTODY
If the child has been exposed directly or indirectly to domestic violence, then the court must design a custody plan to allow safe contact with the abusive parent. In some instances based upon the kind of abuse, the court will prohibit contact between the child and the abusive parent.
Many reasons may exist to place the child in a new custody environment or maintain the child’s current custody plan. The courts and judges are trying to steer away from the language used in the past designating one parent as a visiting parent and the other parent as the custodial parent. The way the judges and specialists in the field currently model custody definitions is to refer to both parents as having “parenting time”. This approach assists the parents in understanding that it isn’t the quantity of time that is most important for the child’s well being but the quality of the time.
WHO CAN ASK FOR CUSTODY OF A CHILD
A common challenge for the court is to decide who will get custody of the child. Child custody may be petitioned by not only biological parents but by grandparents, stepparents, or any person who believes they can provide suitable care and guidance to 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. California however does not currently establish a preference or a presumption for or against joint custody arrangements. Instead, if the parents are unable to come to an agreement on child custody and visitation it allows the California family court or California 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 and the specific circumstances affecting that child’s family system.
If neither parent is granted custody, then the court may look towards the person’s home in which 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, the court will typically look to grant child custody first to the parents according the best interest of the child and if they are deemed unfit the court will then look to grant child custody to other persons according to the best interest of the child.
WHICH PARENT WILL INSURE THE CHILD HAS VISITATION
California Family Code Section 3040 states, 3040. (a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020: (1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Section 3011 and 3020, and shall not prefer a parent as custodian because of that parent's sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order. (2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. (3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child. (b) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child.
As noted in the statute quoted above, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.
If the judge finds that the parent with the current greater time share is sabotaging the parenting relationship of the other parent, the court may make an order to change custody to the other non-offending parent if the judge determines that this parent would be more responsible in insuring that the child has regular custodial visits.