If two parents are unable to reach an agreement on a parenting plan either on their own, through their child custody attorneys, or through child custody mediation, then a family court judge will step in to make a decision after giving each of the parents the opportunity to present their case. Judges have the freedom and ability to consider a wide range of factors in reaching their decision about how a custody arrangement is going to work in a child custody case.
Factors Family Courts Consider in Child Custody Cases in CA
Every child custody case comes down to the best interests of the child. That is the legal standard used by every California family court in determining child custody. This is a flexible test that allows judges to consider numerous factors. Courts want children to be in the best possible situation.
The general presumption is that both parents should play a role in their child’s life. Without any evidence presented to the contrary, that is generally assumed to be in the best interests of a child.
While it’s impossible to predict exactly how the judge will rule in your case, you can anticipate that the judge will consider the factors discussed in this article in making a decision regarding what is in your child’s best interests.
1. The Current Status Quo Custody Arrangement
Generally, a family law judge will not suddenly award custody to a parent who was not previously involved in their child’s life. Parents stand a better chance of being awarded custody if they have a track record of participating in major decisions regarding the child and spending time with them.
The family court wants to maintain continuity to the fullest extent possible and not introduce major changes if they are not necessary. In a sense, custody is a privilege, and a judge will not award it to someone who did not fully participate in their child’s life beforehand.
What “is” the status quo sometimes remains the status quo in a child custody case. In other words, if there has been a schedule that the parents have followed for any significant time and that has worked for the kids, courts may look to that status quo as the basis for any ongoing orders. What’s more, even if one parent claims that the current schedule is not ideal, without good reason and evidence to change the arrangement, the court may still be inclined to maintain the status quo, even over the objection of one parent.
Does that mean the family law court will always keep things the same? Of course not! California’s child custody laws may place a premium on stability and continuity, but custody arrangements and orders can always be modified. In many cases, there may not even be a ‘status quo’ to maintain. For example, parents may be trying to establish a custody schedule for an infant or need to establish paternity if the parents are unmarried and unsure of their rights.
If you are the custodial parent who is facing a custody modification request, consider whether the status quo has been working and how you’re going to advocate to the court that things should say the same.
If you are the noncustodial parent, you should be prepared to explain to the court why the status quo is not consistent with the child’s best interest. This is especially true if the status quo on the custody and visitation has been a temporary departure from how it used to be.
Note: There are exceptions to the “status quo” under California child custody laws. For example, California child custody laws do not permit a family law judge to consider one parent’s absence or relocation from the family residence so long as the absence or relocation was all of the following:
- of a short duration,
- the parent who was absent demonstrated an interest in maintaining custody or visitation,
- the parent maintained or made reasonable efforts to maintain contact with the child, and
- that parent’s behavior is not consistent with an intent to abandon the child.
Noncustodial parents have more rights than they realize and they are not as stuck with the status quo as they may think. California child custody laws are designed to provide both parents with frequent and regular contact with their children when it is in the children’s best interest.
2. The Co-Parenting Relationship Between the Parents
One of the foundational elements that a family law judge takes into consideration before making a decision is whether one parent is frustrating or preventing communication or refusing to engage in co-parenting.
The reason for this is simple – California custody laws favor both co-parenting and communication and expressly provide that a parent who is unwilling to engage in both may not be fit to have joint or primary custody.
The court will consider the relationship between the parents to avoid instituting an arrangement that has little chance of success from the start.
Keep in mind that every single parent believes that he or she is the one trying to co-parent, while the other parent is the problem. This is very rarely the case. Communication is a two-way street.
3. The Relationship Between the Child and Each Parent
The level of emotional bonding that the child has with each parent is a strong consideration in a custody case. Bonding isn’t just an issue of parenting time. The days a parent spends with the kids is important, but bonding goes deeper. It is the level of attention and caring and the child’s response and closeness to that parent that matters. The basic issue is quality, rather than quantity.
It could be that one parent has spent much more time with the child and has a much deeper relationship. To separate the child from that parent would compound a difficult situation and make it worse for the child. Courts could disproportionately divide custody when a child has a strong attachment to one parent, although a judge will not want to prevent the child from developing a strong relationship with the other parent.
Conversely, a child may be craving more time with the parent they have historically spent less time with because, for whatever reason, they have a deeper relationship with that parent.
Parents who are not bonded with their children as a result of their own misconduct may face a tough time in custody and visitation cases, but the situation is not hopeless. Even if a bond has not been established, it sometimes can be; and if it is weak, it can be strengthened.
Bonding is also a function of a child’s age, maturity, temperament, and interests; along with a parent’s personality and stability.
4. The Physical Location of the Parents and Child
Courts will not want to place a child in a difficult position by forcing them to travel long distances between their parents’ homes often. They recognize that children need to go to school and must have time to be themselves and enjoy life as kids. Judges will not want children in a physically or emotionally taxing situation.
That being said, when parents do not live near one another, travel is inevitable and necessary. The court will want to minimize the travel and stress on the child, but it cannot be eliminated in such a situation. For this reason, custody schedules generally give the noncustodial parent less frequent visitation, but the visitation is for longer periods of time.
For example, if a plane trip is required to travel between homes, a common schedule for the non-custodial parent may be 4-6 weeks over the Summer, half of the Winter break, alternating Thanksgiving breaks, alternating Spring beaks, and some long weekends throughout the school year. This can end up being about 30-40% custody time, to put it into perspective.
When parents reside within close proximity to one another, the likelihood of a more equal schedule and timeshare is obviously much higher. This is true whether the parents have always lived close to one another or one parent has recently relocated to be closer to the child.
5. The Preference of the Child
California law does not provide that children get to unilaterally decide their own custody schedule. However, the older the child, the more weight a judge will give to their preference. Under California Family Code § 3042, children over the age of 12 will get some say in where they live, but it is up to the court to make the final decision based on the best interests of the child.
While the court may consider a child’s preference, keep in mind that this is only one of the factors courts consider in child custody cases.
California child custody laws give the Family Court discretion and of course issues such as the child’s maturity, parental influence, and alienation play a role in whether the court will act on a child’s preference. The “why” behind the preference can often become more important than the preference itself.
6. Any Documented History of Domestic Violence or Child Abuse
Family courts and California’s child custody laws take child abuse and domestic violence allegations very seriously.
A parent with a history of domestic violence or child abuse is going to face an uphill battle in seeking any kind of custody. This is because California child custody laws provide that a parent who has been found to have committed domestic violence within the last 5 years must overcome a legal presumption that it is not in the children’s best interest for him or her to share joint custody or have sole/primary custody under Family Code § 3044.
The court has many options available to it when faced with an allegation of abuse to a child.
Typically, the allegation comes from one of the parents. When either parent makes such an allegation, the court can do any of the following:
- Set the matter for a child custody hearing and take testimony of the parties and witnesses: These hearings can be lengthy especially if the abuse has been ongoing for a significant period of time or the abuse is serious.
- Refer the matter to a social services agency for investigation and reporting to the court. Family Code § 3027 provides the authority for the family court to order a social services agency, such as child protective services, to conduct such an investigation and provide a report of findings back to the court.
- Order a child custody investigation. Depending on the county, the court may order an in-house investigation that is conducted by an employee of the court who has social services and investigative education and experience, called a CCI (common in Orange County). Other counties do not offer such investigations.
- Appoint a child custody evaluator to investigate the allegations and report back to the court with recommendations. Family Code § 3111 and Evidence Code § 730 provide the authority for the family court to order such an evaluation. It is important to note that when there are general allegations of child abuse, the Family Court has wide discretion to appoint an evaluator. However, if the court determines there has been a serious allegation of child sexual abuse, the court must order an evaluation assessment or investigation pursuant to California Family Code § 3118.
7. Parental Alienation of Either Parent [Interfering With the Parent-Child Relationship]
We have written articles about parental alienation in a California child custody case. However, it does not have to get to the point of actual alienation for the court to factor in unreasonable conduct by a parent and interference with the parent-child relationship.
Uncooperative parenting and interfering with the other parent’s rights may even lead to a change in custody. Court ordered joint legal custody and parenting time are not suggestions. They are mandates.
If one parent has been uncooperative (and that phrase is not specifically defined by our custody laws) and that has adversely affected or may adversely affect the child’s relationship with the other parent, the court will take such misconduct into consideration.
The weight the court gives such behavior will depend on the extent of the misconduct, the amount of evidence supporting the claim of misconduct, and the other facts surrounding the case. This is good news for parents who communicate and co-parent and bad news for those that don’t.
8. False Allegations of Abuse by a Parent
False allegations of child abuse happen far too often in California child custody cases, and unfortunately, there are rarely ramifications for such conduct.
Fortunately, California family law continues to grow teeth in dealing with false child abuse and neglect cases. The law states any witness, party, or party’s attorney who knowingly makes a child abuse or neglect accusation that is false during a child custody proceeding may be monetarily sanctioned in a reasonable amount.
The issue often becomes proving the “knowingly” element, which can be nearly impossible under many circumstances.
However, perhaps more importantly, the Family Court has the discretion to order supervised visitation or otherwise limit a parent’s custody and visitation in the face of such knowingly made false allegations. This occurs if the court finds there has been substantial evidence presented showing that the parent has made a report of child sexual abuse during the custody proceeding, and the parent knew the report was false at the time it was made.
9. Substance Abuse by a Parent
For an extensive look at the issue of drug and alcohol testing in child custody cases, check out our article on that topic.
Evidence that one parent is habitually or continually using illegal drugs, abusing alcohol, or abusing controlled substances such as prescription medication, can factor into the court’s decision-making process in custody cases. This is especially true if the conduct occurs during that parent’s custodial time, as this conduct puts the child at risk.
10. Parental Abandonment of the Child
The fact that a parent has “abandoned” the child can be taken into consideration when assessing the fitness of that parent to have custody rights. Generally, “abandonment” encompasses more than simply being less involved than the other parent, and refers to a parent who voluntarily has no contact with his or her child for an extended period of time (i.e. years).
That means that if a parent seeks to become the primary custodian of a child, his or her abandonment is a factor the court can weigh when assessing the child’s best interest. Again, the court is not generally going to pluck a child from the care of a primary caretaker and hand them over to a parent who has not been present, let alone actively involved in their child’s life.
11. Criminal Convictions of a Parent
California courts do not turn a blind eye to a parent’s criminal history and record.
When a parent has a significant criminal history, including but not limited to one that involves violence or substance abuse, the family law court has the discretion to take that into consideration when assessing the child’s best interest.
However, it is not enough to point to a parent’s history and based on that alone conclude or assume that the parent is a danger to the child. Like most issues, the end result depends greatly on the individual facts of the case.
Certain specific child abuse crimes, including but not limited to those that require registration as a sex offender, trigger a whole different standard under California law.
In such situations, the court must not award custody or unsupervised visitation to a convicted parent unless the court makes a finding that there is no significant risk to the child. California child custody laws are strict in such cases, and overcoming that presumption is not an easy task.
The laws regarding registration as a sex offender include those situations where the parent has a registered sex offender residing in his or her house. California Family Code § 3030 provides that this felony conviction is actual evidence that the child is at significant risk and a presumption is created that it is not in the child’s best interest to have unsupervised contact with this individual.
12. Abduction of the Child – Threatened or Actual
California Family Code § 3048 addresses the issue of abduction. The court must consider the following questions when evaluating the risk of abduction in a custody case:
- Has the parent engaged in activities that are consistent with planning a removal of the child? This may include selling a residence, terminating a lease, quitting a job, closing bank accounts or liquidating assets, applying for a passport, purchasing airline tickets, or making other travel arrangements.
- Has the parent previously taken the child away or enticed, withheld, or concealed the child in violation of the other parent’s custody and visitation rights?
- Does the parent lack strong ties to the State of California?
- Does the parent have strong familial, emotional, or cultural ties to another state or another country?
- Does the parent have a history of parental noncooperation, child abuse, or the domestic violence?
- Does the parent have a criminal record?
- Does the parent have financial reasons to stay in California? Courts typically will look at the parent’s employment, both the nature and extent of it, and whether the parent can work from anywhere, is financially independent, or whether that employment is or is not strongly connected to the State of California.
The focus of Family Code § 3048 and caselaw interpreting it is to prevent the unlawful removal of children in violation of the other parent’s rights. Family courts rarely hang their hat on one factor or another. It is the culmination that matters.
Orders Against Child Abduction The California Family Court Can Make
California child custody laws allow the court to do any of the following when child abduction is a proven risk:
- Order professionally supervised visitation.
- Require the parent to surrender travel documents such as a passport or anything else that the court deems is necessary.
- Prevent a parent from applying for a new or replacement passport.
- Require a parent to post a bond as a means of financial deterrent.
- Make orders that restrict the parent from removing the child from the State.
- Place restrictions on travel.
- Make orders that require the parent to notify a foreign consulate or embassy of the passport and travel restrictions.
- Require the parent to register the California custody order in another state (or country, if the country will do so and will comply with California’s child custody laws).
- Make orders that require the traveling parent to provide an itinerary, copies of round-trip airline tickets, a list of all of the addresses and phone numbers where the child will be staying and can be reached, and even an open airline ticket for the non-travelling parent in the event the child is not returned in violation of the court order – though this is rare.
13. Special Needs of the Child
A child’s individual needs should always be considered when coming up with a plan for child custody, but when a child has any kind of special medical, psychological, or educational needs, those needs will be considered by the court in determining what is in the best interest of the child.
For example, if the court is faced with a child with autism spectrum disorder (ASD), the key issue at hand may be the child’s need for consistency and routine. Courts generally understand that children on the spectrum are unique, and that their needs are just as unique as they are. The court is thus challenged to grasp the entire scope of what co-parenting a child with ASD entails in fashioning orders.
14. California’s Public Policy Mandate of Frequent and Continuing Contact
California child custody laws require that custody orders ensure the children have frequent and continuing contact with both parents and to share in the rights and responsibilities of raising the child.
Note: there is an exception to this general rule when such an order is not consistent with the child’s best interest. This generally refers to a finding of domestic violence by a parent under Family Code § 3044.
Notice that this frequent and continuing contact rule is not specifically defined. It does not have specific elements that the court must follow. Once again, the family court is given “discretion” (notice how many times that word is used when talking about California child custody law?) to determine how much frequency and continuity should occur in a custody arrangement.
That, however, does not mean that the family court can do whatever they want. The judge cannot give preference to a gender, or arbitrarily give sole custody to a parent and must base his or her decisions on the facts and law. See our guide to child custody for dads for more information on this issue.
Contact a California Custody Attorney Today
It’s important to understand that the judge is not making decisions to hurt or punish one or both of the parents. The court wants to make sure your children end up in the best situation possible.
The unprepared and those who try to handle their own contested child custody cases face a difficult time. Getting the child custody arrangement you want requires convincing the judge of your parenting skills, empathy, and resourcefulness. It’s not a task you can undertake alone.
Our knowledgeable family law attorney, Colleen Talkov, can also help if you have questions about any of the following:
- Child Custody and Visitation
- Restraining Orders
- Child Support
- Family Law Contempt
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