How Does the Court Determine the “Best Interests of the Child?”


When child custody is disputed, California courts are required to make custody determinations that are in the best interests of the child. There are two types of child custody in California: legal custody and physical custody. Physical custody refers to having the child live with a particular parent, and legal custody refers to the ability to make important decisions about the way that the child is raised.

California law does not give a preference to either parent based on sex and also presumes that shared custody is in the best interests of the child. In addition, Section 3020 of the California Family Code requires that courts’ primary concern in determining the best of interests of children in custody orders is ensuring their health, safety, and welfare.

The Best Interests of the Child Standard

When a child custody determination is brought before the court, California law requires the judge to examine different factors to decide what type of custody arrangement would be in the best interests of the child. The following are some examples of factors that should be considered during custody decisions.

The Child’s Health and Safety

First and foremost, a custody arrangement should always protect the child’s health and safety. The judge should consider whether either parent has had a history of domestic violence, especially abuse of the child or in front of the child. State law generally prohibits a judge from granting custody or visitation to:

  • A parent who murdered the child’s other parent
  • A father of a child who was the product of rape
  • A parent who was convicted of specific offenses involving physical or sexual abuse of a child

Other factors that relate to the health and safety of the child include habitual substance abuse of a parent or a parent’s mental or physical disability that prevents them from properly caring for the child.

Stability and Continuity

It is preferable to keep a child’s life as close to the status quo as possible following the breakup of the parents. The judge will evaluate the child’s ties to a particular community, including a neighborhood, household members, school, church, friends, and more. If there are siblings at issue, the court should try to keep them together with the same custody arrangement absent extraordinary circumstances.

Co-Parenting Abilities

California law wants parents to work together to co-parent their child in as healthy a manner as possible. Judges will evaluate whether each parent is willing to encourage and foster a relationship between the child and the other parent on an ongoing basis. If one parent is engaging in conduct meant to interfere with the other parent’s relationship with the child, it can be viewed as highly unfavorable by the court.

Parental alienation is a serious type of conduct in which one parent tries to turn the child against the other parent by telling them lies and negative information about that parent. When discovered, this can negatively impact the alienating parent’s custody rights. In addition, falsely accusing the other parent of drug abuse, child abuse, or similar conduct can result in the accuser’s custody rights being restricted.

The Child’s Preference

Under California law, courts must consider the wishes of the child regarding with whom he or she will live if the child is old and mature enough to make an informed decision. The preference of a child age 14 or older must be taken into account, and children younger than 14 can be heard if the court decides it is appropriate to protect their interests. The older and more mature a child seems, the more weight a judge will give to his or her preference.

Presumption of Joint Custody in California

California law sets out state public policy stating that frequent and continuing contact with both parents is presumed to be in a child’s best interests. This means that courts will try to award joint custody whenever possible to help a child maintain meaningful relationships with both parents.

This is only a presumption, however, as there are certainly situations in which joint custody might be impossible or might put the child’s health, safety, and welfare at risk. If you are a parent and believe joint custody will put your child at risk, you can rebut this presumption by presenting evidence that sole custody would be in the best interests of your child.

Evidence in Custody Matters

How do judges get all the information they need about your and your child’s life to make determinations about what is in your child’s best interests? Like any other type of legal matter, each parent can present evidence to the court to support their positions. Such evidence might include:

  • Proof of certain conduct of the other parent
  • Witness accounts from close family members
  • Testimony of child experts

It is important to have legal assistance to ensure that you present the right evidence in the most persuasive manner possible to uphold your custody rights to your child.

Do You Need a Lawyer for Your Custody Case?

If you are involved in a custody dispute, you may be wondering whether you need to retain an attorney to represent you. While it is advisable to retain a lawyer in any legal matter, it is particularly true when it comes to child custody disputes. Judges have significant discretion when it comes to making custody determinations, so it’s critical that you present your best case from the outset.

An attorney familiar with child custody cases can review the facts of your case and develop a strategy that maximizes your chances of obtaining the custody arrangement you want. In some cases, your attorney may even engage in discovery or investigative tactics that are designed to uncover evidence that is favorable to your proposed custody arrangement. Some of these tactics may include:

  • Issuing interrogatories
  • Deposing your child’s other parent
  • Subpoenaing and deposing other witnesses who have knowledge of facts relevant to the custody determination
  • Hiring a private investigator to obtain additional information about the other parent’s life and habits

Your relationship with and ability to parent your child is too important to leave to chance. Retaining an experienced California custody lawyer is the best way to protect your parental rights.