How will a judge make a decision about custody?
The judge is supposed to keep the health, safety, and welfare of your child as the primary concern when determining a custody arrangement that is in your child’s best interests.1 The judge cannot consider the immigration status, sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child. The judge will look at the following factors as well as other relevant factors:
- any history of abuse by the parent seeking custody against you, your child, your child’s sibling, a child s/he was related to or took care of, his/her parent, his/her current spouse or cohabitant, or someone s/he is dating;
- the nature and amount of contact that the child has with both parents (unless the contact is limited due to the situations described in If I have moved away from the house where the abuser and my children currently live, will this hurt my chances of gaining custody?);
- the regular abuse of prescribed drugs or illegal drugs or the regular abuse of alcohol by one or both of the parents;2 and
- the wishes of the child if the child is old enough to make an intelligent decision. If the child is over 14 years old and wants to talk to the judge about custody or visitation, the judge must allow the child to do so unless it is not in the child’s best interests. Children under 14 years old might be able to talk to the judge as well.3
California has laws that may help survivors of abuse. The judge will assume that giving an abuser sole or joint custody goes against your child’s best interest if the judge finds that the abuser committed domestic violence within the past five years. If an abuser wants sole or joint custody, the burden is on him/her to change the judge’s mind by proving how it is in the child’s best interest for him/her to have custody rights.4 See Can a parent who committed violence get custody? for more information.
1 Cal. Fam. Code § 3020
2 Cal. Fam. Code §§ 3011; 3040(b)
3 Cal. Fam. Code § 3042
4 Cal. Fam. Code § 3044