Child Custody – Factors the Court Considers When Deciding Custody – California Family Code Section 3011

There are several factors that the court will take into consideration when determining child custody. However, one factor outweighs everything else: the best interest of the child in mind. In order to determine the best interest of the child, the court will consider things like the child’s age, health and emotional ties. It is also important for the courts to determine a parents ability to care for the child.

It is also possible that the court will weigh in a child’s ties to the community, school and friends to determine a child custody arrangement. The court only considers the interest of the parents to the extent that the affect the best interest of the child.

In some cases, extenuating circumstances can play a role in determining the best interest of the child (Family Code Section 3011).
• History of Physical Abuse: The family courts must consider any history of physical abuse by a parent seeking custody. If a parent has a proven history of physically abusing the child, they are likely to be denied custody. Any allegation of abuse must be substantiated by independent corroboration such as written reports by law enforcement or child protective services.
• Sex Crimes Requiring Sex Offender Registration: If a parent has been convicted of a sex crime and is forced to register as a sex offender under California Penal Code 290, they may not be awarded custody or visitation rights.
• Child Abuse Convictions: If a parent has been convicted of child abuse, even against a child that isn’t theirs, they may not be awarded custody or unsupervised visitation rights. Child abuse can be either physical pain or mental anguish upon a child. (Penal Code Sections 273a, 273d, 647.6)
• Child Conceived Through Rape: If the child is conceived as the result of a rape, the individual convicted of rape will not be awarded custody or visitation rights. (Family code Section 3030(b)).
• Felonious Murder of the Other Parent: If one parent is convicted of murdering the other parent, he/she may be denied custody and unsupervised visitation rights. (Family Code Section 3030(c)). However, such rights may be granted if the court finds that the conviction bears no risk to the child’s best interests.
• History of Drug and Alcohol Abuse: If one of the parents has a documented history of substance abuse, the court will consider, for custody purposes, the parent’s habitual or continuous use of illegal drugs or controlled substances. Whether or not the parent continuously abuses alcohol is also considered by the court when deciding on visitation matters. Courts will often make orders that the parent cannot consume alcohol 12 hours prior to their visit with the child.
• Environmental Stability: Even though it is not explicitly codified in the Family Code, the family courts will place a strong emphasis on considering whether a particular custody arrangement will provide stable and continuous care and contact for the child.
• Wishes of the Child: As of January 1, 2011, courts will be required to consider and weigh the wishes of the child as long as the child is of sufficient age and can form an intelligent preference (revised Family Code 3042).
• Preference of the Court: It is generally the wishes of the court to grant joint physical custody and try to divide that custody 50/50 between the two parents. This typically is easier when the children are younger or if the parents live within close proximity to one another. The frequency and duration of the visitation with the non-custodial parent varies on a case by case basis.