Family Law

How do Judges Decide Child Custody in California

By Kristina Otterstrom, Attorney
A custody order will affect your relationship with your child for years to come. It’s important to understand your rights and the factors that influence how courts make custody decisions.

Overview of Custody in California

When a court issues a custody order, it will explain in detail how both physical and legal custody are divided between the parents. Physical custody refers to where the child lives and when the child will visit with each parent. Legal custody refers to a parent's right to make decisions about the child's health, education, and welfare.

In California, a joint or shared custody award is presumed to be in the child’s best interests, unless proven otherwise.

When parents share joint physical custody, they both have significant periods of in-person time with the child. A joint physical custody award ensures that each parent has frequent and continuing contact with the child.

When parents share joint legal custody, they share the right and responsibility to make educational, health, and other major decisions involving their child. A judge may award physical and legal custody to both parents, or one parent may have sole legal and/or physical custody of the child.

How do Courts Decide Custody in California?

No single factor determines custody—a judge will decide what arrangement meets the child’s best interests by evaluating each parent’s stability, lifestyle, and ability to meet the child’s needs. Specifically, a judge will examine the following factors:

  • the child’s health, safety, and welfare
  • either parent’s history of domestic violence or child abuse
  • each parent’s relationship and contact with the child
  • either parent’s history of substance abuse, and
  • any other factor relevant to the child’s best interests.

In California, when a child reaches 14 years of age, a court may listen to the child's custody preference. A judge isn’t bound by a child’s opinion, but a court should consider it when deciding what arrangement is in the child’s best interests.

One or both parents may hire a custody evaluator in especially complicated cases or where a judge orders it. A custody evaluator will examine many of the same factors, but may spend additional time interviewing each parent, reviewing a child’s school records, and talking to potential witnesses who are familiar with the child. A custody evaluator will issue an opinion on which parent is most suited to have primary custody or whether a joint custody arrangement is appropriate. A judge isn’t bound by a custody evaluator’s recommendation, but it can be persuasive in your case.

Can a Judge Award Custody to Someone Other Than the Child’s Parents?

Custody should be awarded to one or both parents when possible and when it serves the child’s best interests. However, a custody award to a child’s parents isn’t appropriate in every case. For instance, one or both parents may be deceased, incarcerated, or simply unable to care for their child. In these situations, a judge will award custody to the person with whom the child has been living, as long as it's a wholesome and stable environment.

In California, if a child is not residing in a stable environment, a judge may award custody to any person(s) deemed suitable and able to provide the child with adequate care. This includes grandparents, aunts, uncles, or even family friends. A child’s potential guardian won’t be disqualified based on immigration status.

Finally, in situations where a child has more than two parents (such as cases involving stepparents), a judge will allocate visitation and custody between the parents in a way that serves the child’s best interests. A judge will focus on providing a child with stability and continuity while still giving the child’s parents frequent contact.

Can Parents Create Their Own Custody Agreements?

Parents are free to negotiate their own custody agreements with or without the help of a mediator. A judge will review a final agreement for completeness and to ensure that it serves a child’s best interests. Your agreement should cover:

  • physical and legal custody
  • holiday and summer visitation schedules
  • where a child will attend school
  • transportation between visits
  • where visitation exchanges will take place
  • child support, and
  • medical insurance coverage for the child.
A judge may reject your custody agreement if it’s incomplete, unreasonable, or doesn’t adequately meet the child’s needs. If your agreement is rejected, you’ll have to attend a trial, where a judge will decide custody.

When Can I Modify Custody?

A parent can file a motion to modify custody when there’s been a significant change in circumstances that makes a modification necessary. A judge won’t alter custody unless doing so clearly serves the child’s best interests.

Certain changes like a parent’s remarriage or a move to a different neighborhood usually aren’t enough to justify a change. However, if the parent with physical custody is suddenly transferred to work the graveyard shift, is struggling with substance abuse, is abusing the child, or moves far away, the other parent may request a change in custody. Ultimately, a judge’s decision will depend on whether a custody adjustment will serve the child’s best interests.

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