An Introduction to California´s “Best Interest of the Child” Standard in Custody Cases

A typical question our attorneys receive from potential clients is, “How do courts determine the best interest of the child” in California child custody cases?

Under California Family Code Section 3011, California family courts are provided with a set of guidelines to help the court decide the custodial arrangement of minor children during a divorce with children or during child custody litigation between two parents.  In other words, the judge will use several important factors in deciding the custody arrangement that best assures the child’s “health, safety, and welfare.”  Fortunately for most parents, most family courts in California support custody arrangements that offer “frequent and continuing contact” among both parents.

The factors used to determine child custody in California family courts are presented in California Family Code Section 3011 and serve as a guideline as to which factors the California family courts will weigh when deciding custody.

The factors used by California courts to determine the “best interest of the child” include:

  1. The safety, welfare, and health of the child.
  2. The age of the child. (If a child is fourteen years or older, the child may consider the custody request of the child under California Family Code § 3042.
  3. The history of abuse upon the child by either of the parents.
  4. The amount of contact and the nature of the contact the child has with each parent;
  5. The use of illegal drugs, controlled substances and/or alcohol by either parent. (In situations where drug or alcohol issues are alleged, the court will require corroboration documented a law enforcement agency, rehabilitation facilities, medical facilities, social welfare agencies, or a court).
  6. Any other factor that could affect one of a parent´s ability to adequately care for the child.

Recently, there have been new bills introduced by California legislatures to lower the age in which a child may address the court and express their preference regarding visitation and custody.  The bill sought to lower the age from fourteen years of age to ten years of age.  So far, the new bill has not been passed by the California Legislature and the age remains fourteen years of age or older.

How Some Parents May Try to Manipulate Their Child to Choose Them in a Child Custody Case

In child custody cases, there are times in which a parent may try to pressure or influence their child to choose them for primary custody over the child’s other parent.  Here are a few of the harmful ways a parent may try to pressure their child to ask the court to choose them over the other parent.

Emotional Abuse

Some parents will emotionally abuse their child to cause the child to have behavioral problems with the other parent. When the non-abusive parent attempts to discipline their child, the emotionally abusive parent will use this as the basis of a false accusation of physical or mental abuse in the custody case.

Parental Alienation

Parental alienation occurs when one parent tries to damage the other parent’s relationship with their child. The goal of using parental alienation is to create a division between the child and the other parent so that the child does not want to visit the alienated parent.

Escaping Discipline

It is common that teenage children will pit one parent against the other for their benefit. On occasion, a teenage child may state their preference to grant custody to one parent because the teenager believes they will have more freedom and less discipline when living with one parent and not the other. In other words, the teenager is able to “escape” a home that has rules and discipline and live with a parent who has fewer rules or is a non-disciplinarian parent.

Parental Conditioning

Parents who want custody of their child may resort to “parental conditioning.” Parental conditioning causes a child to choose them over the other in a custody case regardless of the child’s actual preference. Parental conditioning is when a parent uses emotional pressure or guilt to manipulate the child into stating a custodial preference.


For a consultation with a San Jose child custody attorney at the Dominion Law Group, LLP, please call 408-288-5592 or contact us online.

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