The Code makes clear that custody
and visitation determinations are to be made from the standpoint
of the child's best interest (consistent with the § 3020
policies.. [Ca Fam §§ 3011, 3020, 3040, 3041] The
equities, feelings and desires of the contesting parties are
only a factor to the extent they affect the child's best interest.
In making the "best interest"
determination, the court can consider any "relevant"
factors. [Ca Fam § 3011] The court "must look to
all the circumstances bearing on the best interest of the
minor child"
However, among all the relevant factors,
trial courts must consider the following (Ca Fam § 3011):
1. Child's Health, Safety,
And Welfare: A "best interest" determination
must take into account the child's health, safety and welfare.
[Ca Fam § 3011(a); see also Ca Fam § 3020(a),(c)].
This is a paramount policy concern.
2. History Of Physical Abuse:
The court must also consider any history of abuse
by one parent or any other person seeking custody against
(Ca Fam § 3011(b)) the child, the person seeking custody,
or the current spouse.
As a prerequisite to consideration
of allegations of physical abuse, the court may require "substantial
independent corroboration" . . . including, but not limited
to, written reports by law enforcement agencies, child protective
services, etc.
3. Certain violent crimes restrict
custody or unconditional visitation awards
A. Registered Sex Offender
Or Child Abuse Conviction: Neither custody nor
unsupervised visitation may be awarded to a parent or any
other person who either (i) is required to be registered
as a sex offender under Ca Penal § 290 where the victim
was a minor, or (ii) has been convicted of specified child
abuse offenses (under Ca Penal §§ 273a, 273d or
647.6) . . . unless the court finds there is "no significant
risk to the child" and states its reasons in writing
or on the record. [Ca Fam § 3030(a)]
B. Child Conceived By Rape:
Without exception, no person convicted of rape pursuant
to Ca Penal § 261 may be granted custody or visitation
with respect to a child conceived by that act of rape. [Ca
Fam § 3030(b)]
C. First Degree Murder Of
The Other Parent: Neither custody nor unsupervised
visitation may be granted to a person convicted of first
degree murder (Ca Penal § 189) of the child's other
parent . . . unless the court finds there is no risk to
the child's health, safety and welfare and states its reasons
in writing or on the record. [Ca Fam § 3030(c)]
D. History Of Drug And Alcohol
Abuse: In determining the child's best interest,
trial courts must also consider either parent's "habitual
or continual illegal use of controlled substances"
(as defined in Ca Hlth & S § 11000 et seq.) or
"continual abuse of alcohol." [Ca Fam § 3011(d)]
Before considering allegations of
a parent's drug or alcohol abuse, the court may require
"independent corroboration"--such as written reports
from law enforcement agencies, courts, probation departments,
social welfare agencies, medical and rehabilitation facilities,
or other organizations providing drug and alcohol abuse
services. [Ca Fam § 3011(d)]
4. Stability And Continuity
Of Environment: Although not reduced to express statutory
terms, a significant component of the "best interest"
assessment is the policy goal of protecting a stable custody
arrangement. "As we have repeatedly emphasized, the
paramount need for continuity and stability in custody arrangements--and
the harm that may result from disruption of established patterns
of care and emotional bonds with the primary caretaker--weigh
heavily in favor of maintaining ongoing custody arrangements."
[Marriage of Burgess (1996) 13 Cal.4th 25, 32-33,
51 Cal.Rptr.2d 444, 449-450 (emphasis added); see Burchard
v. Garay (1986) 42 Cal.3d 531, 538, 229 Cal.Rptr. 800, 804-805]
5. Separation Of Siblings:
California policy affords strong protection to sibling relationships.
Absent compelling circumstances, such as extraordinary emotional,
medical or educational need, an order separating siblings
between custodial households ordinarily will be reversed as
detrimental to the children's best interest. [Marriage
of Williams (2001) 88 Cal.App.4th 808, 814-815, 105 Cal.Rptr.2d
923, 927-998]
6. Child's Wishes:
The court must "consider" and give "due weight"
to the wishes of children who are of "sufficient age
and capacity to reason so as to form an intelligent preference
as to custody." [Ca Fam § 3042(a); see also Ca Fam
§ 3030(c)(1)].
Note: this is, by
no means, a complete listing of all of the factors the court
may decide to take into consideration in making a custody
award. The court has very broad discretion to consider any
evidence relevant to the "best interests of the child."
