Matters to Be Considered in Granting Custody of Children

Family Code Division 8, Part 2, Chapter 2 deals with matters to be considered in granting custody of a minor child.

Section 3040 provides that custody should be granted in the specified order of preference according to the best interest of the child: to both parents jointly; if to neither parent; or, to any other person. The immigration status of a parent, legal guardian, or relative does not disqualify the parent, legal guardian, or relative from receiving custody.

In addition, the court must not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child. If a court finds that the effects of a parent’s, legal guardian’s, or relative’s history of or current mental illness are a factor in determining the best interest of the child, the court is required to do two items.

This subdivision does not relieve a court from ensuring that the health, safety, and welfare of the child is the court’s primary concern in determining the best interests of children when making any order regarding the physical or legal custody, or visitation, of the child.

Section 3041 provides that, before making an order granting custody to a person other than a parent, over the objection of a parent, the court is required to make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child.

Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, cannot appear in the pleadings. The court may exclude the public from the hearing on this issue. A finding that parental custody would be detrimental to the child must be supported by clear and convincing evidence. The term “detriment to the child” is defined.

Section 3041.5 specifies that, in any custody or visitation proceeding, or any guardianship proceeding, court may order any person who is seeking custody of, or visitation with, a child who is the subject of the proceeding to undergo testing for the illegal use of controlled substances and the use of alcohol if there is a judicial determination based upon a preponderance of evidence that there is the habitual, frequent, or continual illegal use of controlled substances or the habitual or continual abuse of alcohol by the parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship.

The parent, legal custodian, person seeking guardianship, or person seeking visitation in a guardianship who has undergone drug testing has the right to a hearing, if requested, to challenge a positive test result. A positive test result, even if challenged and upheld, cannot by itself constitute grounds for an adverse custody or guardianship decision. Determining the best interests of the child requires weighing all relevant factors.

Section 3042 states that, if a child is of sufficient age and capacity to reason so as to form an intelligent preference as to custody or visitation, the court is required to consider, and give due weight to, the wishes of the child in making an order granting or modifying custody or visitation. The court controls the examination of a child witness so as to protect the best interest of the child.

If the child is 14 years of age or older and wishes to address the court regarding custody or visitation, the child is permitted to do so, unless the court determines that doing so is not in the child’s best interest, in which case, the court states its reasons for that finding on the record. If the court precludes the calling of a child as a witness, the court is required to provide alternative means of obtaining input from the child and other information regarding the child’s preferences.

To assist the court in determining whether the child wishes to express a preference or to provide other input regarding custody or visitation to the court, a minor’s counsel, an evaluator, an investigator, or a child custody recommending counselor is required to indicate to the judge that the child wishes to address the court, or the judge may make that inquiry in the absence of that request. A party or a party’s attorney may also indicate to the judge that the child wishes to address the court or judge.

Section 3043 states that, in determining the person or persons to whom custody should be granted, the court is required to consider and give due weight to the nomination of a guardian of the person of the child by a parent.

Section 3044 provides that, upon a finding by the court that a party seeking custody of a child has perpetrated domestic violence within the previous five years against the other party seeking custody of the child, or against the child or the child’s siblings, there is a rebuttable presumption that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence is detrimental to the best interest of the child. This presumption may only be rebutted by a preponderance of the evidence.

The term “perpetrated domestic violence” is defined. The requirement of a finding by the court is satisfied by, among other things, evidence that a party seeking custody has been convicted within the previous five years, after a trial or a plea of guilty or no contest, of a crime against the other party that comes within the definition of domestic violence.

When a court makes a finding that a party has perpetrated domestic violence, the court may not base its findings solely on conclusions reached by a child custody evaluator or on the recommendation of the Family Court Services staff, but must consider any relevant, admissible evidence submitted by the parties.

Section 3046 states that, if a party is absent or relocates from the family residence, the court is prohibited from considering the absence or relocation as a factor in determining custody or visitation in either of the two specified circumstances. This provision does not apply to two specified parties.

Section 3047 specifies that a party’s absence, relocation, or failure to comply with custody and visitation orders is not, by itself, sufficient to justify a modification of a custody or visitation order if the reason for the absence, relocation, or failure to comply is the party’s activation to military duty or temporary duty, mobilization in support of combat or other military operation, or military deployment out of state.

If the court makes a temporary custody order, it must consider any appropriate orders to ensure that the relocating party can maintain frequent and continuing contact with the child by means that are reasonably available. Upon a motion by the relocating party, the court may grant reasonable visitation rights to a stepparent, grandparent, or other family member if the court does all of the three specified actions.

The granting of visitation rights to a nonparent does not impact the calculation of child support. If a party’s deployment, mobilization, or temporary duty will have a material effect on the party’s ability, or anticipated ability, to appear in person at a regularly scheduled hearing, the court must do either of two specified acts. The following terms are defined: “deployment,” “mobilization,” and “temporary duty.”

Section 3048 provides that, in a proceeding to determine child custody or visitation with a child, every custody or visitation order is required to contain five specified items. In cases in which the court becomes aware of facts that may indicate that there is a risk of abduction of a child, the court is required to determine whether measures are needed to prevent the abduction of the child by one parent. 

To determine whether there is a risk of abduction, the court is required to consider the eight specified factors. If the court makes a finding that there is a need for preventative measures after considering the factors, the court is required to consider taking one or more of the eleven specified measures to prevent the abduction of the child.