Child Custody and Visitation Factors

What are some of the main issues the courts consider when deciding child custody and visitation?

In California, and in many states, the law states that courts must give child custody according to what is in the best interest of the child or children. This is true whether you are before the judge to establish a new parenting plan or modify an existing child custody and/or visitation order. Primarily, they take into consideration the children’s health, safety and overall wellbeing to decide whether to give custody to one or both parents.

That being said, what is “the best interest of the child”? Factors the courts will consider in making this determination include, but are not limited to:

• the age of the child,
• the health of the child,
• the emotional ties between the parents and the child,
• the ability of the parents to care for the child,
• history of family violence and/or substance abuse, and
• the child’s ties to school, home, and his or her community.

Despite what many people think, the Courts do not automatically give custody to the mother, no matter what the age or sex of your children. In addition, Courts cannot deny a parent's right to custody or visitation just because you were never married to the other parent, or because you or the other parent has a physical disability, or a different lifestyle, religious belief or sexual orientation. Again, it goes back to what is in the "best interest of the child."

Consistent with the "best interest of the child" philosophy, in some cases, if giving custody to either parent would harm the children, courts can and will give custody to someone other than the parents because it is in the best interest of the child(ren). Usually, this is type of custody is called “guardianship,” where someone who is not the parent asks for custody of the children because the parents cannot adequately care for the child or children.

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