When deciding matters pertaining to child custody, placement, and parental visitation schedules, courts are not free to rule as they choose. Courts in California, and in most states, apply what is known as the child’s best interest standard.

Say that a divorced couple is in a legal dispute over which parent should receive primary physical custody of the child. One of the parents might argue that they are better-fit for this role than the other parent. As part of the argument, that parent might point out they have a more stable job history, have roots in the community where the child lives, can better-provide for the child’s material needs, and so forth. 

The other parent may counter-argue that they are the more suitable primary physical custodian, by arguing, for example, that they have more spare time to spend with the child, that their extended family is close to the child, and so forth. 

Under the child’s best interest standard principle, parental wishes and fitness are subordinated, or made secondary to, what the court determines to be the child’s own best interest. This means the judge’s primary consideration is what arrangement is proper for the child’s best interest, including the child’s health, mental and physical well-being, and social development. Many times, one parent seeks to modify a custody order, to receive additional custody. 

In cases where a parent seeks to modify a custody order, or to have an order in favor of the other parent modified, the judge applies the same, child’s best interest standard principle. 

How is the Child’s Best Interest Determined in California?

In California, custody proceedings are held in family court, before a family court judge. Each parent attends the proceedings, and offers argument and evidence for the judge to consider. Arguments and evidence a judge will consider under the best interest standard principle include arguments about the child’s health, well-being and safety. The judge will also consider arguments and evidence bearing on the history of the relationship between the child and each of the parents. 

Specifically, the judge will hear testimony from witnesses, review financial information, and any other relevant documents, to determine whether the child’s health, well-being and safety will be affected by placement with one or the other parent. The evidence should point to the conclusion that the child’s best interest would be served by placing the child with one (as opposed to the other) parent. In such cases, the judge is likely to order that custody with that parent is appropriate.

One principle of the best interest standard, is that children benefit from frequent and continuing contact with both parents. Therefore, the judge, when hearing arguments and evidence, attempts to reach a decision under which the child can regularly see both parents.

Sometimes, the judge will find it impractical to create a custody order under which the child can regularly see both parents. In certain situations, facts about one or the other parent (or both) are so important that the best interest standard will not take precedence; these facts will. For example, if one parent has been convicted of robbery and is imprisoned, the “regular” child’s best interest standard will be applied. 

However, the court may give extra, and maybe decisive, weight, to the fact of the incarceration. This is so because the fact of the incarceration takes certain other “best interest standard” considerations, such as whether both parents can provide food and shelter, off the table. The incarcerated parent, in this example, cannot provide for this, so the judge will not consider that parent’s ability to do so. 

In certain instances, California law dictates the judge’s decision. Under California law, a judge may not grant custody or unsupervised visitation to a parent who has committed certain crimes. These crimes include certain acts of sexual child abuse or physical child abuse. These crimes also include first-degree murder of the other parent. 

If any of these crimes have been permitted, a judge may only award custody to the parent who committed the crime under certain circumstances. Specifically, the judge must make a finding that the parent’s criminal history does not pose a risk of harm to the child. If the judge makes this finding, the judge must explain their rationale in writing.

Are There Other Considerations?

Judges can evaluate a number of other factors when reaching a custody decision., These include:

  • The child’s wishes, if the judge finds the child is sufficiently mature to express a preference.
  • The parents’ mental and physical health condition. If either parent’s mental or physical health is impaired, the judge will take that fact into consideration. If the impairment renders the parent either of unsound mind, or physically incapable of raising a child, the judge will give significant weight to such a finding.
  • The parents’ having engaged in acts of abuse or domestic violence. Courts closely look at a parent’s history of abuse or violence, since acts of abuse or violence can pose a risk to a child’s safety. A judge will consider evidence of abuse or domestic violence by a parent seeking custody. The judge may consider acts of abuse or domestic violence that were committed against anyone, not just the child or former spouse.
  • The parent’s relationship with drugs or alcohol. Consumption of drugs or alcohol can render a home environment unsafe. Consumption of drugs or alcohol can also incapacitate a parent, mentally or physically, to the point where the parent cannot fulfill basic parental responsibilities. Judges therefore consider whether a parent has previously or is currently abusing drugs or alcohol. If the abuse resulted in government intervention (through either a social services agency or through law enforcement), the judge will consider that fact.

Can the Child’s Best Interest Standard be Overridden?

Under specific circumstances, the child’s best interest standard can be overridden, or give way to other considerations. These factors can relate to one or both parents. 

Such factors include a parent’s being in an emergency or life-altering situation (say, the parent requires emergency medical treatment, and has received a prognosis of only a few years to live), or becoming unemployed, or there having been a recent death of a close family member. 

Any of these events, which have a significant and direct impact on the parent, may be considered by a judge in determining what parent the child is properly placed with.

What if the Child’s Best Interest Standard is Violated?

If a judge incorrectly applies the best interest standard, an aggrieved party may seek review from an appeals court. That court will usually uphold the judge’s findings, since it was the judge who examined the evidence, heard testimony, and was able to make first-hand observations. 

If circumstances change, such that it is no longer in a child’s best interest to be placed with one parent, the other parent may file a petition with the family court judge. In the petition, the parent requests that the custody order be modified, and argues that the child’s best interest is more appropriately served by placement with the petitioning parent.

Should I Hire a Family Lawyer?

If you have a custody, child placement, or visitation schedule matter, you should consult a California family lawyer. An experienced California family attorney near you can review the facts of your situation, advise you as to your rights and options, and can represent you at custody hearings.