Home » California Law: Factors Judges Use When Making Child Custody Decisions

California Law: Factors Judges Use When Making Child Custody Decisions

There is probably no family law issue that is more stressful than disputes over child custody. Whether they arise as part of a divorce or as a dispute between unwed parents, trying to balance the best interests of a child against the wishes of the parents can be a difficult decision for a judge to make.

The law provides judges in California with guidance to help them to make decisions that take into consideration the fact that children benefit when parents share the parenting role. Of course, the law takes into account the fact that shared parenting might not always be possible.

Preferences when making custody decisions

State law requires judges hearing child custody cases to make the best interest of the child the overriding consideration in any decision that is made. This begins with the presumption that having both parents play a role in raising the child is preferable to other arrangements. There are many factors when even just considering child visitation to the other parent.

As a result, judges are provided with the following order of preference as to whom custody should be awarded:

  • Joint custody: This is preferred unless other factors make it impossible.
  • Custody to one parent: Judges must take into consideration which parent is more likely to provide the noncustodial parent with access to the child. Evidence that one parent has made visitation or parental contact difficult could lead a judge to award custody to the other parent.
  • Non-parent custody: This may arise in situations where the child is residing with someone other than a parent. If the environment is wholesome and stable, a court might elect to order that the arrangement continue.
  • Suitable Persons: A judge may decide that neither parent is a suitable person to have custody of a child that is living with one or both of them. If there is another person who the court believes could provide the proper care and guidance for the child, it can award custody to that person.

A judge’s decision as to who should be awarded custody will depend upon the evidence presented by each of the parties at the custody hearing. Judges are also granted broad discretion in cases in which a child has more than two parents to make an order that fosters the continuation of the emotional bonds existing between the parents and the child.

Factors that might influence child custody orders

The California Family Code provides factors that judges should take into consideration when deciding custody disputes. Some of those factors include:

  • Child’s health and welfare: The best interest of a child must always take into consideration his or her safety, health and general welfare.
  • Physical abuse: Evidence of a history of physical abuse of the child by a parent seeking custody or by someone else in the household would weigh against a custody order placing the child in that household.
  • History of violent crimes: Custody may be denied to a parent who is a registered sex offender or has a criminal record that includes a child abuse conviction.
  • Parental drug or alcohol abuse: Proof that a parent has a history of drug or alcohol abuse that is a continuing problem could be a factor against granting custody to that parent.

Avoiding the uncertainties of child custody disputes

The uncertainties associated with the many factors judges must take into consideration before awarding child custody can be avoided if the parents reach an agreement outside of court. Parenting agreements negotiated between the parties with the assistance of a family law attorney are encouraged under state law as an alternative to leaving the decision to a judge.


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