Factors in Child Custody Decisions

Factors in Child Custody Decisions

If you are a parent involved in a child custody dispute in the San Francisco Bay area, the San Mateo and Silicon Valley area or anywhere in California, it is essential for you to understand the factors California courts consider in making child custody determinations.

A custody decision will encompass both Legal custody (the right to participate in decisions about a child’s life) and Physical custody (where a child actually lives), as well as visitation rights.

Negotiated parenting agreements which are amenable to both parties are the approach preferred by California courts for determining child custody arrangements. There are, however, situations where a negotiated custody agreement may not be in the best interest of a child, or simply may not be possible.

California law requires that the best interest of the child be the overarching determining principle of any child custody determination, including the child’s health, safety, financial and general welfare. A custody decision will largely depend on evidence presented by each party to the dispute.

Joint custody is preferred

Joint Physical and Legal custody is favored under California law when parents enter into a negotiated agreement. In the absence of such an agreement, the court does not explicitly favor or oppose joint custody in any particular case, and California law recognizes that joint custody may not be possible. However, the law does assume that joint custody is usually in a child’s best interest, and a judge must explain in writing any custody decision that does not include joint custody for a parent who has requested it.

Because California law prioritizes having both parents involved in a child’s life when possible, judges must consider whether one parent is more or less likely to consistently provide a noncustodial parent with custodial access to the child. If there is evidence that one parent has a history of interfering with the other parent’s visitation or contact with the child, this could be a factor in awarding primary custody to the other parent, and likewise courts may consider whether one parent is more likely to encourage contact and an ongoing relationship with the other parent.

Evidence of any knowingly unfounded claims of abuse by one parent against the other, in an effort to prevent the other parent from having contact with the child, may cause the court to limit the custody or visitation of the parent who made the allegations.

General factors in custody determinations

There is no automatic expectation that primary custody will be awarded to either the mother or the father, and California courts cannot consider marital status, physical disability, sexual orientation or religion as factors in a custody determination.

In general, a judge must consider each parent’s ability to provide a suitable and stable home and the physical necessities of a child’s life, such as food, clothing, shelter, education and medical care. The mental and physical health and general lifestyle of each parent will be considered, as well as the established pattern of the child’s life and routines, including community, home, school, religious and social activities. Minor siblings are generally kept together, outside of exceptional situations.

In particular, judges will also consider:

  • The potential impact of any custody change on the child’s well-being.
  • The emotional bond between the child and each respective parent.
  • The quality of the child’s education.
  • The child’s preference, especially with regard to children 14 and older.
    (For more detail on this topic, see our article on children’s preferences in a child custody dispute.)

Physical abuse

Any evidence of a history of physical abuse by a parent, or abuse occurring in the parent’s household, may factor against that parent’s custody or visitation.

Sex offender status or a criminal record for child abuse or parental abuse, or evidence of such abuse without a conviction that can be corroborated by a third party such as Child Protective Services, may prevent a parent from being granted custody or unsupervised visitation.

Judges are specifically prohibited from granting primary custody or unsupervised visitation to a parent who has been convicted of first degree murder of the other parent, or has been convicted of certain child abuse crimes, unless the judge explains in writing the reasons and affirmative evidence that this history poses no risk to the child.

Substance Abuse

Evidence of a history of drug or alcohol abuse that is continual or habitual can weigh against a parent in a custody hearing. Such allegations will often require corroboration, which may be difficult to provide to the court.

Non-parental custody

California law allows for Guardianship Custody in cases where neither parent may be suitable for custody of a child and a third party requests custody – typically a relative or family friend.


Grandparents who have an established relationship with a child have the right to ask the court to grant them visitation rights in an ongoing custody dispute in California. The courts must balance the bond between the child and the grandparent with the child’s overall best interest, and the rights of parents to make decisions with regard to their children.

Contact Lurkis, Joyce & Del Bove today

The child custody attorneys at Lurkis, Joyce & Del Bove are concerned with your child’s best interest, and understand that child custody disputes can be stressful and confusing, and may also have a decisive impact on your child’s future, and your role in your child’s life. Our attorneys are deeply experienced with all of the issues involved in a custody dispute.

To set up an initial consultation, call our firm at (415) 399-1460 or (650) 779-5527, or submit our case evaluation form.