FAM § 3040 – Alienation of Child from Parent – Family Code 3040

cited https://codes.findlaw.com/ca/family-code/fam-sect-3040.html

Family Code Sections 3011.

In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any
other factors it finds relevant, consider all of the following:

• (a) The health, safety, and welfare of the child.
• (b) 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 relationship. As a prerequisite to considering allegations of abuse, the court may require substantial 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 subdivision, “abuse against a child” means “child abuse” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means “abuse” as defined in Section 6203 of family code.
• (c) The nature and amount of contact with both parents, except as provided in Section 3046.
• (d) 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 subdivision, “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. (e)
  • (1) Where allegations about a parent pursuant to subdivision
    (b) or (d) 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 (b) of Section 6323.
  • (2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.

Child Custody and The 12 Best Interest Factors

1. What are the “Best Interest” Factors?

   The court weighs the Best interest factors after a determination of custodial environment has been established. This is because the court must first know the burden of proof (“clear and convincing evidence” or “by preponderance of the evidence”) by which to judge evidence brought by the parties concerning the 12 factors.

   The court then weighs these factors to determine what is in the child’s best interest concerning custody or custody changes, and parenting time. Keep in mind that the factors do not have equal weight. The court will determine the weight of certain factors vs. others.

   Also, just because your party may have more factors in their favor, does not mean you will necessarily win your motion. The court may give certain factors great weight over the others, like evidence of abuse.

2. Love and affection

   (a) The love, affection, and other emotional ties existing between the parties involved and the child:

   This factor focuses on the emotional bonds presented to the court about where the child is at in terms of emotional ties with the parents.

   Who does the child look to for love and comfort? Does the child primarily want to be with you?

3. Religious upbringing

   (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any:

   This factor, in contrast to factor (a), looks to the future. It asks the question of what the parties can provide in terms of guidance and religion. The court here will look to your past behavior as an indicator of the future.

   So, do you take the child to Church? Have you had the child in SCOUTS? Or have you made efforts to educate the child, besides just sending them to daycare…etc.

4. Ability to provide

   (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs:

   Here the court will look to the parent’s ability to provide for childcare and other necessities. Essentially, can you the parent take care of the child and provide a roof over his head? Are you able to feed and clothe as well as give the child “good experiences”?

   Stay away from strict economics here because the court will most likely value things like stay-at-home parenting, and ability to be home for the child. Also, having more financial stability, but not significantly contributing to your child, can hurt you and be weighed against you.

5. Stability of the child’s environment

   (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity:

   The court will look to whether the child will have a comfortable and safe place to grow up in.

   So how long have you lived in one place? Is this place a safe place? Look at sex offenders and crime rates. Does the child call your home his home?

6. Permanence of the family home

   (e) The permanence, as a family unit, of the existing or proposed custodial home or homes:

   This factor focuses solely on the permanence of the family environment, not the acceptability of the home or childcare arrangements. Here the court is likely to penalize those without support structure.

7. Moral fitness of the parties

   (f) The moral fitness of the parties involved:

   The court does not focus on “immoral” actions per se, only how these actions relate to their parenting. So, does one of the parents suffer from drunkenness, vulgarity, or commit criminal acts?

   Essentially, look to behavior that would affect the children, not just offend the conscience. Things like having female and male sleepovers would not be of paramount concern, unless the person sleeping over was a sex offender (in that case the parent would be inviting in a sex offender which would potentially harm the child).

8. Parents health

   (g) The mental and physical health of the parties involved:

   Here the court may not have anything to factor because medical privilege will trump disclosure. Just don’t discriminate against those with disabilities! That could implicate other federal and state laws.

9. Successful schooling

   (h) The home, school, and community record of the child:

   Most of the time, the court will look to the school record; how many absences from school, disciplinary actions, or detentions. However, when a small child is involved, ask your self, “can the child continue to attend and do well in school?”

   Also, the court may consider whether the child would have to change schools in order to be with the other parent.

10. Preference of the child

    (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference:

    This is factor concerns the child’s preference. Generally, the child will tell the judge where he/she wants to live. Additionally, the court will determine the minimum age of the child to be able to testify to this factor. The older the child, the more credible.

    Keep in mind, that this factor does not allow for extraneous information, like “mommy is a bad person,” only testimony as to where the child wants to live. Also, the court will conduct this testimony in confidential setting to avoid destroying the other parent’s relationship with the child.

11. Parent facilitates and encourages a close and continuing parent-child relationship with other parent

    (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents:

    Parents must facilitate a relationship between the child and the other parent. The court will presume that each parent has a right to parent and see their child, the question is just how much and where. If the child does not want to go, then either parent should make the child go for the purpose of the relationship.

    Remember, that the court will give significant weight to this factor because of the presumption that parents have a right to see and parent their children.

12. Domestic violence

    (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child:

    Has the child been the victim of sexual or physical abuse? The court will certainly look here first and weigh this factor extremely heavily in their consideration of the child’s best interests.

    However, often parties overlook whether there has been abuse in the house in front of the child. Has either parent suffered abuse? Are others in the house violent?

13. Court determined relevant factor

    (l) Any other factor considered by the court to be relevant to a particular child custody dispute:

    Other questions usually concern unique situations. However, courts should never use race as a factor. Further, while the court may entertain biological preference (sex), this consideration should be considered holistically and not with a straight-line rule (ex. males always go with father). cited https://www.avvo.com/legal-guides/ugc/child-custody-and-the-12-best-interest-factors

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