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Determining Child Custody in California

child custody

When a couple with minor children decides to end their marriage, a court has to make a decision regarding the appropriate custody arrangement. This subject is one that is fraught with emotions, and it can be difficult for the parties to come to an agreement. When discussing custody, the court looks generally at “the best interests of the children.” Determining what is in a child’s best interests depends on several factors, as follows:

Factors that impact custody determinations in California

  • The children’s health and safety – when a court makes a custody determination the safety and health of the children will be one of the most important factors considered. If one parent has been physically or sexually abusive, then that parent might be prohibited from having visitation, or only permitted supervised visitation. In addition to violent crimes, the use of illegal drugs and alcohol abuse might be factors that limit visitation or custody arrangements.
  • Ability to foster a relationship with the other parent – courts have a presumption that children will benefit from having a relationship with both of their parents. If one parent has made efforts to damage the children’s relationships with the other parents, the court is likely to consider this when they make the custody arrangement. For instance, a parent who was preventing the other parent from communicating with the children would be viewed as causing harm to those children. In more extreme cases, a parent will actually make false claims of abuse against the other parent in an effort to damage the relationship between the other parent and the child. This behavior will be looked at unfavorably by the court. The ability to co-parent and allow for, and help foster a relationship with the other parent is viewed as more desirable.
  • Continuity – courts try to avoid unnecessary upheaval when possible. There will be a preference for the primary caregiver remaining in that role, and for keeping children in their home when the option exists. There is also a strong preference for keeping siblings together rather than splitting them between the parents. If the parents have been using a schedule for visitation for a period of time, and it works for the kids, then the court will likely want to keep on that same schedule.
  • The preference of the child – children are able to weigh in on the arrangement that they would prefer. How much this will factor in will depend on the age of the children and how mature they are.

Factors that will not be considered as important in child custody

  • Gender – While it used to be assumed that mothers had an advantage in custody battles, California law does not allow gender to be a determining factor in a custody case.
  • Race – If the parents are different races, this will not be a determining factor for custody.
  • Sexual orientation – Courts typically treat sexual orientation as irrelevant in determining custody.
  • Religion – the court will not make a custody determination based on the religious beliefs of the parents. This is a Constitutional issue, as the First Amendment protects religious freedom.
  • Handicaps – while a physical handicap could be serious enough to make caring for children difficult, in most cases, a physical handicap will not be a major factor in deciding the best custody arrangement.
  • Finances – courts will not have a preference for the wealthier parent.

Of course, in cases where one of these issues somehow impacts the children, the situation could be different, for example if one of the parents engaged in a religious ritual that put the child in danger.

If you are in the San Bernardino, Riverside, or the Inland Empire area of Southern California and have questions regarding your situation, contact the Redlands child custody lawyers at Milligan, Beswick, Levine & Knox LLP at 909-798-3300 for a free consultation.

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Stephen Levine, is a Board Certified Specialist in Criminal Defense — an honor achieved by only the top criminal law attorneys in California. Mr. Levine has over 40 years of experience in criminal defense and family law serving Southern California, and is a highly regarded Super Lawyer as well as AV Rated attorney.