There are no higher stakes in family court than the decisions it will make about your child’s custody. You can quell your concerns by understanding what the court looks for in custody matters. The key standard in any child custody decision is “the best interests of the child.” What does this mean, and how is it determined? In this article, we will answer these questions, review how a court may assess your child’s best interests, and provide measures you can use to protect your family and yourself.
A Parent’s Right to Custody
In general, parents of a minor child have equal custody rights. However, a mother receives sole custody if no presumed father is involved. A presumed father can include:
- The mother’s current, former, or attempted spouse;
- A parent identified on the child’s birth certificate;
- A parent who accepts the child into their home and holds the child out as their own; or
- A parent who is identified as the father through genetic testing.
If you did not give birth to your child, legally establishing yourself as the child’s parent is crucial to receiving equal custody rights. However, depending on the circumstances, a court might still shift these 50/50 rights in favor of one parent over another.
When Does Child Custody in California Come Up?
Family courts intervene to make child custody determinations in many cases, including:
- Divorce cases,
- Cases where the parents were never together,
- Legal separation cases,
- Domestic violence cases,
- Cases to nullify a marriage, and
- Cases where a spouse seeks exclusive custody of their child.
If you have concerns about your child’s well-being while in their other parent’s custody, contact an attorney right away. You don’t always have to wait for a divorce or a legal separation to receive a court order that protects your child.
What Is Custody?
Child custody in California includes the following:
- Legal custody grants a parent the authority to make important decisions about the child’s upbringing, including education and healthcare; and
- Physical custody refers to the child’s living arrangements and the amount of time spent with each parent.
A family court might grant joint legal and physical custody to both parents, or sole legal or physical custody to one parent. When making these decisions, California family law courts focus on what is in the best interests of the child. Let’s discuss what this standard means and how a court decides what is in a child’s best interests.
What Is the Best Interests of the Child Standard?
With the best interests of the child standard, California law seeks to ensure the child’s safety, welfare, and health. This standard includes the goal of keeping each child in an environment that is free from abuse.
Courts in custody cases typically try to ensure that each child has continuing and frequent contact with both of their parents. They also want parents to share parenting responsibilities and rights. However, if factors in a child’s case threaten their safety, the court might grant more rights or responsibilities to one parent over the other.
Factors for Determining the Best Interests of the Child
What does the court look for when deciding what’s in a child’s best interests? Under California law, the best interest factors include the following:
- The child’s health, safety, and welfare;
- The amount and nature of contact the child has with both parents;
- Whether either parent has been convicted of a sex offense;
- Whether either parent has a history of substance abuse;
- Whether either parent has made false reports of abuse to interfere with the other parent’s custody rights;
- Whether either parent has a history of abusive behavior;
- Whether a parent has been convicted of murdering the other parent;
- The child’s wishes, if they are old enough and can form an intelligent preference; and
- Whether anyone in either parent’s household is a registered sex offender because of their actions against a minor child.
When more serious factors are involved in a best interests determination, such as criminal activity or false accusations, the court might terminate a parent’s custody rights or limit a parent to supervised visitation.
In addition to these factors, courts may also look at the quality of each parent’s relationship with the child, the stability of the home environment, and the ability of each parent to meet the child’s emotional, educational, and developmental needs. A judge may consider how involved a parent has been in day-to-day care, whether they’ve been consistent in their parenting role, and whether they can support the child’s relationship with the other parent in a healthy way.
Factors the Court Does Not Consider in Custody Cases
To protect your rights as a parent and your child’s welfare, knowing what factors are not relevant to custody decisions is also crucial. The following are not best interest factors in custody cases:
- A parent’s or legal guardian’s sex,
- A parent’s or legal guardian’s gender expression,
- A parent’s or legal guardian’s sexual orientation, or
- A parent’s or legal guardian’s gender identity.
Contrary to what some people might believe, California courts do not automatically grant custody to a mother just because she is a mother. Further, courts do not automatically send all male children with their fathers and all female children with their mothers. Developing a custody order is a more nuanced process with plenty of opportunities for a parent to prove their rights.
How Do I Prove What Is in My Child’s Best Interests?
Custody determinations are detailed and sensitive matters that might require significant evidence from parties seeking custody. To assert your custody rights, you might have to gather and present the following:
- School records,
- Lay witness testimony,
- Healthcare records,
- Police reports,s
- Correspondence,
- Expert witness testimony,
- Correctional facility records,
- Recordings,
- Court documents,
- Photographs, and
- Records from social services agencies.
Depending on your circumstances and goals, you might have to provide these records regarding you, your child, the other parent, or someone in either parent’s household.
Judges often weigh the credibility and consistency of evidence as much as the evidence itself. For example, a parent who can demonstrate a long-standing pattern of being actively involved in the child’s school life, doctor’s appointments, and extracurricular activities may be seen as a stabilizing presence in the child’s life. Photos, calendars, and written communications that support this narrative can be surprisingly persuasive in court.
Gathering Evidence on Your Own
You should gather as much of the above-listed evidence as you can and prepare yourself by doing the following:
- Requesting and keeping records from your child’s school and healthcare visits,
- Taking notes of each occurrence in your life that raises concerns about your child’s well-being,
- Requesting or keeping social services records related to you or your child,
- Keeping a list of every individual who can be a witness regarding your child’s well-being,
- Requesting and maintaining records from your own healthcare visits,
- Saving correspondence related to your child,
- Saving correspondence showing the nature of your interactions with other parties in your case,
- Requesting and keeping police reports that involve you or your child,
- Requesting and maintaining court documents that involve you or your child,
- Saving lawfully taken recordings or photographs, and
- Keeping copies of all other relevant records you have.
When it comes to recordings, remember that California is a two-party consent state, meaning you cannot legally record a conversation unless you have the consent of everyone involved in the conversation. Violating this law could subject you to hefty fines or imprisonment, so you should speak to an attorney before taking or using recordings in your case. An attorney can also help you gather evidence that is harder to access on your own.
Gathering Evidence Through Legal Procedures
To gather hard-to-access proof for your case, you might have to use special legal tools such as interrogatories and subpoenas to request the evidence. Hard-to-access information might include:
- Healthcare records of other parties,
- Court documents regarding others,
- Testimony from a reluctant witness,
- Police reports involving others, and
- Government agency records regarding other parties.
Interrogatories are questions you submit to another party with a requirement that they provide sworn answers (and sometimes related documents) by a deadline. Subpoenas are legal demands for individuals to testify at or to provide documents for a legal proceeding. If a party refuses to answer an interrogatory or comply with a subpoena, they might be subject to legal sanctions.
Collecting evidence can be challenging, but it’s one of the most important tasks to fulfill in your custody case. Fortunately, you don’t have to handle this undertaking alone. An experienced trial attorney can utilize the proper legal tools and techniques on your behalf to help you develop strong evidence and a powerful case.
The Stratte Firm Can Protect Your Family
Our legal team at The Stratte Firm brings more than a decade of experience to the table and can guide you through any family law case. Your insight matters, and we take the time to listen, collaborate, and build strategies around what’s most important to you. Please call or contact us online today to schedule an appointment.
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