Factors the Court Considers When Determining Child Custody – California Family Code Section 3011, 3040 – 3049

Under California Family Code Section 3040, the standard a California family court will use to determine child custody is the overall best interest of the child with an emphasis on assuring the “health, safety, and welfare” of the child. In addition, courts in California favor “frequent and continuing contact” with both parents.

In determining child custody family courts in California will use California Family Code Section 3011 as a guideline as to what factors the court will consider in determining child custody.

These include:

  1. The health, safety, and welfare of your child;
  2. The age of your child. Under Cal. Fam. Code § 3042, if your child is of sufficient age and capacity to reason, the court would consider the wishes of your child. Under § 3042(c), if your child is 14 years of age and wishes to testify, the court will allow your child to do so;
  3. Any history of abuse against your child, you, or the other parent by you, the other parent, or any other person seeking custody;
  4. The nature and amount of contact your child has with you or the other parent;
  5. The habitual or continual illegal use of a controlled substance or alcohol by you or the other parent. In these situations, there must be independent corroboration about the substance abuse that is documented either by a law enforcement agency, a court, rehabilitation facilities, medical facilities, social welfare agencies, etc.;
  6. Other factors that may affect your or the other parent’s ability to care for your child;
  7. In certain situations, courts will consider the wishes of your child so long as your child is of sufficient age and can form an intelligent preference (Cal. Fam. Code. Section 3042).


If it is found that giving custody to you or the other parent would harm your child, the court could grant custody to a third party (Cal. Fam. Code § 3040). This is called a “guardianship,” where the person with custody of your child is neither you nor the other parent. Courts sometimes prefer guardianships even if you or the other parent requests child custody because it is in the best interest of your child to be with a guardian and because you or the other parent cannot care for your child. In a guardianship, the court may grant visitation to the parents.

Child of Age and Reason Custody Rights

Child Custody

Child custody court

Sometimes, courts are also willing to take the wishes and rights of children into account. In custody matters, the court may take the children’s wishes into account when the child is “of sufficient age and capacity to reason.” The older the child is, the more likely the judge is to listen to him or her. In order to avoid emotional pressure or coaching by parents, the child may be asked to talk to the judge in private. Teenagers under 18 may also be emancipated – granted legal adulthood – by the court. Emancipated teenagers must still go to school, but they can make many of their own legal decisions, like where to work, what medical care to get and how to handle their money. Emancipation is only available to teens who:

  • Are age 14 or over
  • Can make their own money legally.
  • Can handle their own finances.
  • Can prove their parents or guardians (including the foster care system) won’t stop them from moving out.


Call Wallin & Klarich Today

Wallin & Klarich has handled child custody cases for more than 30 years. We understand that this legal process can be difficult and stressful for our clients. Because of this, we are committed to providing timely, informative legal advice to our clients. When you place your trust in a Wallin & Klarich child custody attorney, you can rely on our promise that we will fight hard to get the best possible result in your case. With offices located throughout the Los Angeles, Orange, Riverside, San Bernardino, San Diego and Ventura counties, we are able to be there for you wherever you happen to live.

To speak with an experienced child custody attorney about your case, please call us at (888) 749-7428. We will be there when you call.

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