California courts use the "best interest of the child" standard to make child custody decisions. Specifically, judges refer to Section 3011 of the California Family Code which directs them to consider the following factors:
- the health, safety, and welfare of the child
- any history of abuse by one parent or any other person seeking custody
the nature and amount of contact with both parents
- illegal or excessive drug or alcohol use, and
- any other factors the court finds relevant.
How California Judges Make Child Custody Decisions
California law gives judges a lot of flexibility to make custody determinations and decide on a parenting plan based on the best interest of the child. Under California Family Code, Section 3040 the court may give custody to:
- both parents jointly
- one parent, taking into consideration which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent
- the person or people with whom the child has been living in a wholesome and stable environment, or
- any other person or people the court finds suitable and able to provide adequate and proper care and guidance for the child.
The law specifically states that the immigration status of an otherwise qualified person will not prevent that person from gaining custody of a child.
Court Should be Your Last Resort
Going to court to get custody of a child will be stressful for you and, worse, tough on the children. Also, because judges have so much flexibility to make custody decisions, it leaves the family vulnerable to the biased opinions of individual judges. For these reasons and more, a court case is something to pursue only if all other options—like negotiation and mediation—have failed. Take advantage of all the resources available to you for creating a parenting plan before subjecting yourself and your kids to a court battle.
Studying the law. This article summarizes the key factors courts use to make custody decisions in California. That said, family law is a complicated subject and laws do change. We recommend that you read the official version of California Family Code Sections 3011 and 3040, available from the California State Legislature.
Working with a lawyer. If you’re working with a lawyer, mediator, or both, ask them for help understanding how California law applies to your specific circumstances.
Finding your local family court. In California, family law cases are handled in the county superior courts. Be sure to take advantage of the self-help resources your court offers.