Child’s Best Interest in Custody Cases

By Jennifer Wolf cited 

What is the Best Interests of the Child Checklist?

By Jennifer Wolf source 

The Best Interests of the Child is a standard that the courts use to determine what’s best for the kids when parents are disputing issues such as custody, access, support, special expenses, etc. Rarely do parents go to court over disputes, but when they do, the judge will look at family relationships, primary caretaking responsibilities, cultural and religious relationships, special needs, and such to make his or her ruling.

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Best Interest Factors When Deciding Custody

Each state has its own set of factors—typically referred to as the best interest factors—that judges must evaluate when deciding custody. Although states may differ slightly, the most common factors include:

• the love, affection, and emotional ties between each parent and the child
• each parent’s ability to provide the child with a home, food, clothing, and the necessities of life
• the child’s preference (this factor is restricted in some states and greatly depends on the child’s age, mental capacity, and willingness to provide an opinion)
• each parent’s ability to give the child loving support, parental guidance, and discipline
• stability and consistency (courts like to keep the child’s routine consistent, so if the child has routinely lived with one parent and has developed a schedule, school, and childcare routines, the court is less likely to disrupt the child’s life with a change in custody)
• each parent’s moral fitness, drug and alcohol history, and the mental and physical health
• whether either parent has a history of child or domestic abuse
• each parent’s willingness to facilitate a healthy and continuing relationship between the child and the child’s other parent
• the child’s age and any special needs (younger children may require nursing and special needs children require specialized care that not all parents are capable of providing)
• the history of the child’s relationship with each parent. For example, has the child’s mother been a stay-at-home parent and bonded with the child to the extent that awarding substantial or sole custody to the child’s other parent would be detrimental?
• the child’s home, school, and community record, and
• the child’s relationships with other family members in the home, such as stepparents and siblings.

It’s important to understand that no single factor is more important than the other. Instead, the court will look at all the factors, facts, and family history to decide whether one or both parents are best suited to care for the child on a day-to-day basis. Additionally, each court can evaluate any other factors that the judge believes will affect the child’s best interests.

Some Courts Ask for Help

Some states allow the judge to ask a division of the family court for assistance with evaluating what’s in a child’s best interest when it comes to deciding custody.

For example, in Michigan, parents with custody disputes must file a motion with the Friend of the Court, which begins the process of a custody investigation. During the investigation, a social worker specially trained in custody and parenting time will meet separately with each parent and the child to evaluate what’s in the child’s best interest for custody and parenting time. At the end of the investigation, the social worker will prepare a written recommendation detailing the findings of the interviews (listing findings for each best interest factor) and will submit it to the court. In most cases, the judge adopts the worker’s recommendations, even if one parent objects.

Other states require parents to attend court-ordered mediation before asking the judge to decide. Mediation is a process where a neutral third-party helps facilitate a discussion between the parents about custody and helps the parents reach an agreement instead of asking the court to do it for them.

Custody mediators are trained in their state’s best interest factors and will help the parents understand how a judge would decide custody based on those factors, which avoids costly and needless litigation in court.

Although you may think you know what’s in your child’s best interest, it may not line up with your child’s other parent or what the court determines. Consider hiring an experienced family law attorney before you file for custody or try to resolve a custody dispute on your own. cited

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Each Parent’s Ability to Meet Children’s Needs

The most basic part of the “best interests” standard is that custody decisions should serve the children’s health, safety, and welfare. Judges will look at whether one or both parents are able to handle a child’s special educational, medical, mental health, and other needs.

Children’s Relationship With Both Parents

Many states have an explicit policy of encouraging frequent and continuing contact between children and their divorced or separated parents. In pursuit of that goal, judges will consider several factors related to the past and present parent-child relationships.

Parents’ Willingness to Support Each Other’s Relationship With Their Children

Judges will look at the parents’ history of cooperating—or not— with each other around their parenting schedule. For instance, judges might want to know things like whether one parent interferes with visitation in any way.

Judges will also look for evidence of each parents’ willingness to foster a good relationship between their child and the other parent. Is one parent bad-mouthing the other in front of the kids? Does one parent tend to start arguments when picking up or dropping off the child with the other parent?

The more cooperative parents will usually have an edge in a custody dispute. And parents who are obviously trying to alienate a child from the other parent—or who just can’t refrain from undermining the other parent’s relationship with the kids—will learn the hard way that judges don’t look kindly on that type of behavior.

Parents’ Relationships With Their Children Before Divorce

Judges will look at each parent’s history of taking care of and spending time with their children on a day-to-day basis. Sometimes, parents who haven’t been much involved with their kids’ lives suddenly develop a strong desire to spend more time with the children once the marriage has ended.

In many cases, this desire is sincere, and a judge will respect it—especially if the parent has been dedicated to parenting during the separation period. But the judge will definitely take some time to evaluate the situation to make sure that a parent isn’t requesting custody primarily to win out over the other parent, and that a parent with little experience of daily caretaking can follow through with those new-found wishes.

History of Abuse or Neglect

Obviously, when there’s clear evidence of child abuse or neglect, a judge will limit the abusive parent’s contact with the children. If judges do award visitation in these cases, it will usually be supervised and structured in a way to protect the children from future emotional or physical harm.

Domestic violence against the other parent will also play into custody decisions, particularly when the kids have witnessed the abuse..

Children’s Need for Continuity and Stability

When it comes to children, judges are big on the status quo, because most of them believe that piling more change on top of the traumatic transition of divorce generally isn’t good for kids. Among other things, judges may look at the child’s ties to the current school and community.

So if you’re arguing that things are working fine, you’ve got a leg up on a spouse who’s arguing for a major change in the custody or visitation schedule that’s already in place.

Several other factors that judges consider are related to children’s need for stability after divorce.

Each Parent’s Living Situation

There’s a bit of a chicken-and-egg dilemma surrounding the issue of which parent keeps the family home and how that affects custody. Often, the judge awards the home to the parent with physical custody of the children, because that will provide stability and continuity in the children’s lives. Other times, the judge awards custody to the parent who’s going to stay in the family home, for the same reason.

Whether you’re the “out-parent” (the one who isn’t staying in the family home), or neither you nor your ex were able to keep the house after divorce, you’ll need to prove that your current living situation would be a good place for the children to spend a lot of time if you want primary or shared custody. Don’t expect to get that result if you’re crashing in your best friend’s guest room while you get back on your feet after the divorce.

At the same time, most judges will try to avoid penalizing parents who can’t afford a nice home with an ideal set-up for kids. (It’s also worth noting that the child support laws in many states allow judges to consider the differences in living standards between the parents’ households when they’re deciding on the amount of child support in cases where the kids will spend time with both parents.)

How Far Apart the Parents Live From Each Other

The proximity of your home to your spouse’s may also factor in to the judge’s custody decision. The closer you are to each other, the more likely it is that the judge will order a time-sharing plan that gives both parents significant time with the kids. When parents live in the same community, their children can continue with their same social, sports, and religious activities regardless of which parent they’re staying with on which day. Geographical distance becomes more important as kids get older and maintain stronger bonds with their friends.

It’s also less taxing on the children to go back and forth between parents who don’t live far apart.

The Children’s Preferences

Depending on the state and the children’s maturity, judges may talk to kids to find out where they want to live and how much time they want to spend with each parent. Or judges may learn about the children’s opinions from a custody evaluator.

Some states require judges to consider children’s custody preferences when they’ve reached a certain age, but they may listen to younger children’s view when it’s appropriate. In other states, the requirement isn’t about the child’s age as much as the ability to express an opinion based on sound reasoning—not on things like which parent will let them stay up late.

Still other states disapprove of bringing the children into custody decisions at all.

Does the Age of a Child Matter in Custody Decisions?

The “tender years” doctrine—the idea that young children should stay with their mothers—has long been officially out of fashion. The gender of the parents is not a factor to be considered in custody decisions, but some states still allow judges to consider the children’s age. And some judges continue to believe that younger children should live with their mothers, especially when the mother has been the primary caregiver. Certainly, it’s not likely that a father would be awarded sole custody of a nursing baby.

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Best Interest of the Child Standard –

Test for the Factors Weighed by California Courts Under Family Code Sections 3011, 3020, 3040

Parents engaged in custody disputes frequently charge into court with a list of reasons supporting their position that the court should grant them custody of their child rather than the other parent.  These same parents frequently leave the courthouse without the orders they requested, wondering why nobody cares about their compelling and well-thought-out list.

Here is the not-so-secret reason nobody cares about that list: the list doesn’t address the factors the court considers when making child custody orders in California.  In truth, the list most likely focuses on the faults of the other parent rather than providing the court with any legally relevant information regarding the child.

Checklist for Parents Seeking Custody of Minor Children Under California Family Code 3011, 3020, 3040

The function of the family court is not to change, fix, or judge parents but to dispose of their disputes at a given point in time.  California family courts are wholly unconcerned about the personal grievances parents in a custody dispute have against one another.  Instead, the courts are guided by the factors and standards of the California Family Code.

Guide to Best Interest Standard – Family Code 3011, 3020, 3040

The Best Interests of the Child Standard (BIC) is not found in only one code section or case; it is a compilation of many different Family Code sections and case law. However, the standard primarily arises out of Family Code 3011, 3020, and 3040. These sections are used by family courts when making and modifying child custody orders.

The child’s best interest depends partly on the health and safety of the child’s mind and body (i.e. mental and physical). The family court considers how well the parents can keep a livable home and meet basic food, clothing, medical, and education needs of the child.

Of course, any issues having to do with drug or alcohol problems, sexual abuse, or any kind of domestic violence will be considered.

If the judge thinks the child is mature enough, the child’s own wishes must be a factor in the decision.

Below, each of the code sections making up the BIC Standard is unraveled:

California Family Code Section 3011 – Welfare of the Child

Family Code 3011 provides a broad non-exhaustive list of factors for California family courts to consider in making a determination of what custody and visitation orders are in the best interests of a child.  This section is the root of the commonly referenced “Best Interest Standard” in California family law jurisprudence, and provides a road-map for custody attorneys, child custody mediators, parents, and judges.

While it may seem axiomatic for the court to consider the health, safety, and welfare of a child in making orders regarding where and with whom a child will live, this section mandates the consideration.  Section 3011 also creates a rebuttable presumption against awarding custody to parents who have substance abuse problems – implying that the California State Legislature views substance abuse as a crisis directly impacting the safety and well-being of children.

The best interests of the child, as a matter of public policy in California, always trumps the rights and interests of parents.  However, Section 3011 also creates protections for parents/guardians seeking custody of a child in family court by giving the court discretion to require independent corroboration as a prerequisite to considering allegations of abuse.  A history of abuse may also trigger other presumptions affecting custody of a child under the Family Code, such as those outlined in Family Code 3044 regarding domestic violence findings.

Family Code Section 3011 provides that:

(a) In making a determination of the best interests of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant and consistent with Section 3020, consider all of the following:

(1) The health, safety, and welfare of the child.

(2)(A) A history of abuse by one parent or any other person seeking custody against any of the following:

(i) A child to whom the parent or person seeking custody is related by blood or affinity or with whom the parent or person seeking custody has had a caretaking relationship, no matter how temporary.

(ii) The other parent.

(iii) 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 relationship.

(B) As a prerequisite to considering allegations of abuse, the court may require independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this paragraph, “abuse against a child” means “child abuse and neglect” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in clause (ii) or (iii) of subparagraph (A) means “abuse” as defined in Section 6203.

(3) The nature and amount of contact with both parents, except as provided in Section 3046.

(4) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this paragraph, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.

(5)(A) When allegations about a parent pursuant to paragraphs (2) or (4) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323.

(B) This paragraph does not apply if the parties stipulate in writing or on the record regarding custody or visitation.

(b) Notwithstanding subdivision (a), the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.

Family Courts Cannot Consider Sex, Gender, Gender Identity, Gender Expression, or Sexual Orientation

Arguably the most important take-away from Section 3011 is subsection (b), prohibiting the court from considering a parent or guardian’s sex, gender identity, gender expression, or sexual orientation in determining the best interests of the child.

This subsection coupled with the proclamation of Family Code 3010 that a mother and father are “equally entitled to the custody of the child” expresses the clear California legislative declaration that historical bias in favor of mothers and against LGBTQ parents is not consistent with the public policy of the State of California.  This notion is again addressed in Section 3020 and Section 3040 presumably because of the long-standing bias and perceived bias in custody matters.

California Family Code 3020 – Children Should Have Frequent and Continuing Contact with Both Parents and Have a Right to Be Safe and Free From Abuse

The “frequent and continuing contact” language of Section 3020 is commonly utilized by judges, and custody attorneys in family court when requesting and making child custody orders.

At its core, this section is putting California on notice that parents are expected to work together in raising children even when the parents are not in a relationship (i.e. married, dating, living together, etc.), and it is presumed to be in a child’s best interest to see both parents regularly unless there is a legally valid reason (i.e. abuse, substance abuse, etc.) otherwise.

(a) The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.

(b) The Legislature finds and declares that it is the public policy of this state to ensure 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 when the contact would not be in the best interests of the child, as provided in subdivisions (a) and (c) of this section and Section 3011.

(c) When the policies set forth in subdivisions (a) and (b) of this section are in conflict, a court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.

(d) The Legislature finds and declares that it is the public policy of this state to ensure that the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative is not considered in determining the best interests of the child.

Family Code 3020 doubles down on Section 3011 by declaring that the chief concern of the State with regard to custody of children is the “best interests” of the minor children.

California Family Code 3040 Grants the Court Wide Discretion to Choose Visitation Schedules for Children

The commonly misconstrued language of Family Code Section 3040, subsection (a)(1), is often incorrectly applied by both litigants and attorneys alike.  The plain language seems to create a presumption that it is in the best interest of children for parents to share joint legal and physical custody.

Further reading of the section is necessary to ascertain the true legislative intent, however, as subsection (d) declares that Family Code 3040 does not establish a preference or presumption in favor of joint legal or physical custody, but grants the court and family “the widest” discretion to choose a parenting plan consistent with the best interests of the child (as enumerated in Section 3011).

If no presumption in favor of joint legal and physical custody is created by Section 3040(a), then what does it mean?

Section 3040(a) dictates that the order of preference in granting custody of a child is as follows: first, to the parents of the child; second, if to neither parent, then to someone with whom the child has been living in a stable/wholesome environment; and finally, if to neither parent or someone with whom the child is living, then to any other suitable person who can provide adequate care and guidance to the child. This section can be used to award custody of a child to a step-parent or guardian.

That is to say that California courts will grant custody to a parent before any third party unless it is not in the best interest of the child to do so.

Subsection (a)(1) also creates a mandate on the family court to consider which parent is more likely to facilitate frequent and continuing contact with the other parent.  This provision can create problems for parents who are unable to co-parent and parents who engage in alienating behaviors.

Family Code 3040 provides that:

(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

(b) The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).

(c) The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child under subdivision (a).

(d) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child, consistent with this section.

(e) In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.

Applying the Best Interest of the Child Standard

Parents do not have to fight to win. In fact, if the parents have not already agreed on what they want to happen, the court will make them try mediation to work out a custody agreement and a full parenting plan. Only if all else fails will the couple face a family law judge who will make the decisions.

No matter if the judge must force a plan on a couple or approve a child custody agreement they have already drawn up, state law requires that everyone focus on doing what is in the child’s best interest. cited 

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Your Just Read this DETAILED VIEW Click Here to Visit our Resource What Exactly is the Child’s Best Interest in Custody Cases!

Click here to learn What Law is Used in Determining Factor in FAM § 3011 – Determining Best Interest Child – Family Code 3011

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