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Key Court Considerations In Determining Custody


Matters of child custody are almost always one of the most highly contentious matters in the dissolution of a marriage involving children. The stress inherent in determining child custody comes not only from wanting to ensure your rights and needs are met, but also trying to ensure that you protect your children. The dissolution of a marriage very often affects the children even more than the adults. Due to this, along with the impressionable nature of children, California law has developed in such a way that Family Law Judges have a lot of discretion to custom-design custody arrangements that best serve a child’s specific needs.

With that in mind, this article aims to give you an idea of what factors the court will consider when they are called upon to determine custody arrangements. (Remember, generally speaking, if the divorcing spouses can come to a mutual agreement on child custody without court involvement, the court will usually defer to the parents’ agreement.)

Key Factors considered

The court will consider the following key factors when determining child custody in California:

  1. What best serves the child’s health, safety and welfare? This will look different depending on the particular child and parents in question. However, you should expect that the Judge will come to the table with a general belief that encouraging both parents to be a part of the child’s life will be of benefit to the child (unless a very compelling reason such as abuse or neglect is established.) What is best for a child may vary based on the child’s ages as well. For instance, it is possible that a Judge would find it of great importance for a child approaching the age of puberty to spend more of their time with the parent of the same sex.

Again, if the parents can come to a mutual agreement themselves then they wrest a greater level of control over these issues. A Judge will do their best to create a schedule that is fair and equitable, but they are an outside party that does not know the inner workings of your child or the family dynamic.

  1. Is there a history of abuse by either parent? This can have major implications on custody and/or visitation arrangements. If you do need to make an allegation of abuse, work with an experienced attorney to ensure that it is pursued appropriately and with all due speed. If you are defending against false allegations of abuse, it is equally important that you engage with an experienced attorney to ensure your rights are properly defended.
  2. What is the nature of contact between the child and both parents? How often is the child in contact with both parents? Lets say, for example, that a father remains married but has left his wife and moved in with a new girlfriend. That father chooses to only see his child from the prior relationship a few times over the course of the next 4 years. If the mother of the child files for divorce and sole custody of their child, the father of the child will have an uphill battle convincing the court that he should be entitled to 50/50 custody.
  3. Abuse of controlled substances. The court will certainly heavily consider allegations of substance abuse, particularly if that abuse has taken place with the child present, or has put the child in jeopardy (for example, DWI with the child in the car.)

Contact Cardwell, Steigerwald Young LLP

At Cardwell Steigerwald Young LLP, our San Francisco divorce lawyers know that our clients are navigating through one of the most difficult and impactful experiences of their lives. We have helped countless clients come through their divorce and custody actions and land on the best possible outcome in their case. Contact our office today to speak with one of our dedicated Attorneys about your legal matter.


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