Child Custody Basics in California

Child Custody Basics in California

            When parties to a dissolution proceeding have minor children, they will generally need to work out an agreement regarding legal and physical custody of the child(ren). Legal custody determines which parent will make decisions about a child’s health, safety, education, and welfare, while physical custody refers to where a child will reside.

Sometimes parties agree on how they would like to legal and physical custody to be; in this case, parties to a dissolution proceeding may file a Stipulation with the court reflecting their agreement. However, often parties cannot reach agreement terms agreeable to both; in these cases, a parent must file a Request for Order to request the court order the custody/visitation schedule desired.

In California, custody disputes are settled by determining what arrangement is in the best interest of the child, and the overall health, safety, and welfare of a child is of the utmost concern. It is the express public policy of the state to assure that the health, safety, and welfare of children is the court’s primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children.[i]

However, it is also the public policy of the state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship. [ii]  Courts thus should encourage parents to share the rights and responsibilities of child rearing in order to effect this policy (unless, of course, the contact would not be in the best interest of the child).

Where these two policies conflict, any court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.[iii]

Generally, courts are inclined to maintain the status quo, meaning the schedule that the parents have been following for any significant period of time and that has worked for the children. That is not to say, however, that a court will also issues orders maintaining the status quo should the court find otherwise is in the best interest of the children.

Maintaining the status quo contributes to the stability and continuity of a child’s environment, which are factors California courts have found to be important in determining custody. For example, a court has stated: “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.”[iv]

Generally, a child does not have the right to choose where to live until they are 18. However, 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.[v]

In sum, parties to a dissolution proceeding who have minor children should do their best to negotiate a custody schedule in order to avoid fighting it out in court. However, should they end up litigating custody, ultimately a court will make its orders based on the best interest of the children.

[i] Family Code § 3020 (a).

[ii] Family Code § 3020 (b).

[iii] Family Code § 3020 (c).

[iv] Marriage of Burgess (1996) 13 Cal.4th 25, 32-33.

[v] Family Code § 3042 (a).