How the Court Decides Custody

The law governing Child Custody (California Family Code) does not establish a preference, nor a presumption, for or against joint legal custody, joint physical custody, or sole custody.

Instead, it specifically allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child. It reads, in part,

"The health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children."

Furthermore,

"… it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child…"

While the state is very clear that the courts must do what is in the best interests of the children, when it comes to the issue of Physical Custody, the state does not have many "hard and fast" rules. It is often very difficult for a judge to determine what is in the best interest of a child. There are very few situations that will "guarantee" one or the other parent will be awarded custody of children.

The California Family Code sets forth the following factors a court must consider in making a determination of what is in the best interest of the child includes:

1. A) "The health, safety, and welfare of the child.
   
   Any history of abuse by one parent or any other person seeking custody against any of the following:
   1. Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
   2. The other parent.
   3. A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationships..."
2. "The nature and amount of contact with both parents..."

"The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent."