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Best Interest of the Child

Typically, when parents decide to divorce or end their relationship, one of their primary concerns is how custody of their children will be divided. If they cannot come to an agreement, they will often ask the Courts to make custody determinations. The Court's primary concern in any custody case is what is in the best interest of the children involved. Fortunately, the California Family Code clearly establishes what the Courts must consider in evaluating what custody arrangement will benefit a child. It is smart, therefore, for any party in the midst of a custody dispute to consult a trusted San Diego child custody lawyer to evaluate what measures they can take to protect their rights.

The Best Interest of the Child Standard

While the California Courts apply the best interests of the child standard in custody matters, no single law defines the best interest standard. Instead, the standard arises out of multiple statutes, namely Family Code 3011, 3020, and 3040. The Courts will use these sections and any applicable case law to make or modify child custody orders. If a Court fails to conduct a thorough analysis or properly apply the best interest standard, it may constitute grounds for an appeal.

California Family Code 3011

Family Code 3011 pertains to the welfare of the child. It sets forth a list of factors the Courts should consider when developing or modifying custody or visitation orders. Broadly speaking, when people cite the Best Interest Standard, they are referring to the elements set forth in this section. Notably, however, the list is not all-inclusive. In other words, the Courts are not limited to considering only the factors set forth in Family Code 3011. It is also important to note that the best interests of any children that are the subject of custody disputes surpass the best interest of their parents.

Although it may seem obvious that the Courts would want to ensure that children have a safe environment in which they can grow and thrive, Family Code 3011 expressly mandates that the Courts consider a child's safety, health, and welfare in determining custody arrangements. It also states the Courts should consider the amount and character of contact the child has with each parent.

Family Code 3011 also allows the Courts to consider whether either parent or party seeking custody has a history of abusing the child, the other party pursuing custody, or a romantic partner, or a history of continuously and habitually abusing alcohol or prescription or illicit substances. In order to consider allegations of abuse or substance abuse, though, the Courts may require independent corroboration. This can include but is not limited to written reports from child protective services, law enforcement, and other public agencies.

Family Code 3011 states Courts are not permitted to consider the sexual orientation, gender identity, or sex of any relative or parent in evaluating what is in a parent's best interest. In other words, the Courts cannot be biased for or against mothers, fathers, or LGBTQ parents in custody matters.

California Family Code 3020

California Family Code 3020 focuses on the tenet that it benefits a child to have continuing and frequent contact with both parents and encourages parents to share parental responsibilities and rights in order to uphold this policy. It cautions, however, that if contact or communication between co-parents would not be in the best interest of a child or is detrimental to their health or safety, it should be avoided. It also reiterates that children have a right to be free from abuse and live in a safe environment, that is free from domestic violence or child abuse and that the safety, health, and well-being of children is the primary concern when issuing an order regarding physical and legal custody. California Family Code 3020 also reiterates that the Courts cannot consider the gender identity, sex, sexual orientation, or gender expression of any relative, parent, or legal guardian when determining what is in a child's best interest.

California Family Code 3040

California Family Code 3040 dictates how the Courts should apply the best interest standard set forth in Family Code 3011 and Family Code 3020 when developing a custody plan. Although Family Code 3040 sets forth the order of preference for granting child custody, it also grants the Courts wide discretion in making decisions regarding custody, as long as any determination they make complies with the best interest standard.

California Family Code 3040 sets forth the order of preference in granting custody of a child, according to the best interest standard. First, both parents should jointly share custody, or either parent should be granted custody. In making a decision to grant either parent custody, the Court must evaluate, among other things, which parent is most likely to allow the other parent to have continuing and frequent contact with the child. If neither parent is suitable, custody should be granted to someone the child has been living with in a stable and wholesome environment. Finally, custody may be granted to any other person the Courts deem suitable to provide the child with proper guidance and care. The Courts cannot consider the parents' immigration status, sexual orientation, gender, gender expression, or sex in determining custody. Further, Family Code 3040 explicitly states that it does not establish a preference against or for sole custody, joint legal custody, or joint physical custody but merely allows the Courts to develop a parenting plan that is in the child's best interest.

Meet with an Experienced California Family Law Attorney

Parents generally want what is best for their families, but co-parents often disagree as to what custody arrangement will be most beneficial for their child. If you are faced with a custody issue, it is in your best interest to meet with an attorney as soon as possible to discuss your options. The experienced San Diego family law attorneys of Doppelt and Forney APLC have ample experience representing parties in custody matters, and if you hire us, we will diligently pursue a favorable legal outcome on your behalf. You can contact us through our online form or by calling us at 800-769-4748 to set up a free and confidential conference.

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