Factors in Child Custody Decisions

If you are a parent involved in a child custody dispute in the San Francisco Bay area, the San Mateo and Silicon Valley area or anywhere in California, it is essential for you to understand the factors California courts consider in making child custody determinations.

A custody decision will encompass both Legal custody (the right to participate in decisions about a child’s life) and Physical custody (where a child actually lives), as well as visitation rights.

Negotiated parenting agreements which are amenable to both parties are the approach preferred by California courts for determining child custody arrangements. There are, however, situations where a negotiated custody agreement may not be in the best interest of a child, or simply may not be possible.

California law requires that the best interest of the child be the overarching determining principle of any child custody determination, including the child’s health, safety, financial and general welfare. A custody decision will largely depend on evidence presented by each party to the dispute.

Joint Custody is Preferred.

Joint Physical and Legal custody is favored under California law when parents enter into a negotiated agreement. In the absence of such an agreement, the court does not explicitly favor or oppose joint custody in any particular case, and California law recognizes that joint custody may not be possible. However, the law does assume that joint custody is usually in a child’s best interest, and a judge must explain in writing any custody decision that does not include joint custody for a parent who has requested it.

Because California law prioritizes having both parents involved in a child’s life when possible, judges must consider whether one parent is more or less likely to consistently provide a noncustodial parent with custodial access to the child. If there is evidence that one parent has a history of interfering with the other parent’s visitation or contact with the child, this could be a factor in awarding primary custody to the other parent, and likewise courts may consider whether one parent is more likely to encourage contact and an ongoing relationship with the other parent.

Evidence of any knowingly unfounded claims of abuse by one parent against the other, in an effort to prevent the other parent from having contact with the child, may cause the court to limit the custody or visitation of the parent who made the allegations.

General Factors in Custody Determination

There is no automatic expectation that primary custody will be awarded to either the mother or the father, and California courts cannot consider marital status, physical disability, sexual orientation or religion as factors in a custody determination.

In general, a judge must consider each parent’s ability to provide a suitable and stable home and the physical necessities of a child’s life, such as food, clothing, shelter, education and medical care. The mental and physical health and general lifestyle of each parent will be considered, as well as the established pattern of the child’s life and routines, including community, home, school, religious and social activities. Minor siblings are generally kept together, outside of exceptional situations.

In particular, judges will also consider:

• • The potential impact of any custody change on the child’s well-being.
  • The emotional bond between the child and each respective parent.
  • The quality of the child’s education.
  • The child’s preference, especially with regard to children 14 and older.
    (For more detail on this topic, see our article on children’s preferences in a child custody dispute.)