12 Factors Used in Deciding Custody and Visitation Disputes Between Parents

§12.1 I. SCOPE OF CHAPTER

This chapter discusses the various factors a court considers in deciding custody and visitation
disputes between parents, all of which are based on a determination of the "best interest of the
child." Certain of the factors are mandatory; others may be considered in the broad discretion of
the trial court. An increasing number of factors must be considered by the court according to
statute, as the legislature has enunciated California public policy, and as reviewing courts have
interpreted the law.

This chapter also addresses those factors that a trial court is prohibited from considering,
generally because to incorporate such factors into a child custody determination would violate
rights protected by the United States or California constitutions.

§12.2 II. HISTORICAL DEVELOPMENT OF FACTORS COMPRISING BEST INTEREST OF

CHILD

Over time, significant changes in the law governing child custody have taken place in California,
reflecting the evolutionary nature of child custody law. As expressed by one commentator
(Tompkins, Parenting Plans: A Concept Whose Time Has Come, 33 Family & Conciliation Courts Rev
286 (1995)):

Child custody law, both in its conceptual basis and in its reality of practice, is clearly an
evolutionary process that reacts to the changing landscape of contemporary families. It reflects the
collective thoughts of the legal and psychological communities. Reactive in nature and a product of
the legislative process of compromise, child custody laws typically lag behind the changing needs
of the families they are designed to serve. Positively stated, child custody laws and the ability to
change them provide us with a rare opportunity to impact families in a beneficial manner as
families go about the business of reorganizing their roles and responsibilities.
To the extent there are enumerated "factors" that guide counsel and the court in making custody
determinations, those factors are born of statutory construct, current social mores and science,
and common sense. All of those components are then focused by concepts of legal relevance. The
common analysis is on how these facts or factors relate to the child's best interest.

The inclusion or exclusion of various factors, and the significance given to each, whether born of
statute, case law, or psychological truisms, also reflect how the current societal attitudes have
changed over the years, and portend how those attitudes will continue to change.

Before 1980, former CC §4600(a) stated: "[O]ther things being equal, custody shall be given to the
mother, if the child is of tender years." This language, a codification of the "tender years doctrine,"
established a preference in favor of the mother, and unless she was proved unfit, custody of a young
child was awarded to her. Currin v Currin (1954) 125 CA2d 644. During its tenure, the tender years
doctrine was the only statutory factor affecting child custody. The other significant, but
nonstatutory, factor was marital fault, which, before 1970, one party needed to prove to obtain a
divorce, and which affected property division and spousal support. Thus, the pre-1970 custody
cases often focused on fault or the basis for the divorce. The fault requirement also affected the
award of child custody, i.e., implied a party's parental fitness or unfitness, regardless of whether a
legitimate nexus existed between the fault alleged and custody. See Taber v Taber (1930) 209 C 755,
757 (father, a "kind and devoted husband and a loving and thoughtful parent" awarded custody of
two children under 6 years old when wife had "deliberately broken up the family home because of
an infatuation for a third person").

The 1969 passage of the Family Law Act, operative January 1, 1970, made California the first "no-
fault" state in the nation by eliminating fault as a factor affecting the right to end the marriage,
divide community property, and award spousal support. The concept of no-fault dissolution of
marriage began to chip away at the tender years doctrine.

The California Legislature did not abolish the tender years doctrine until 1980, when it added the
language that now appears in Fam C §3040(a)(1): "In making an order granting custody to either
parent, the court … shall not prefer a parent as custodian because of that parent's sex."

The elimination of the tender years doctrine and fault as factors affecting child custody orders
reflects our modern concept of gender equality. However, these factors may not yet be completely
defunct. In 2005, AB 1236 was introduced in the California Assembly, which, had it become law,
would have established procedures by which a couple could enter into a marital contract rejecting
the right to a "no fault" divorce, except in certain circumstances.

In the 45 years since fault was eliminated as a factor in divorce or dissolution of marriage, and the
35 years since the tender years doctrine was replaced by a gender-neutral statute, the number and
complexity of statutory and nonstatutory factors that a court either must or may consider have
mushroomed.

In its first incarnation, former CC §4600 (now Fam C §3040(a)(1)) required the court to consider
only which parent was more likely to allow the child frequent and continuing contact with the
noncustodial parent. Currently, the court must consider—among other things—any parental
history of spousal and/or child abuse (Fam C §3011(a)(2)), substance abuse (Fam C §3011(a)(4)), and
risk of flight (Fam C §3048(b)).

As will be discussed in this chapter, even the "factor" of genetic biology, over time, has become less
of a "guarantee" that necessarily leads a biological parent to a favorable determination of parentage
and custody over the challenge of a nonbiological parent. See, e.g., Elisa B. v Superior Court (2005) 37
C4th 108; In re Jesusa V. (2004) 32 C4th 588; Sharon S. v Superior Court (2003) 31 C4th 417, 432.

§12.3 III. COURT'S BROAD DISCRETION

"The determination of child custody rests with the discretion of the trial court." Marriage of Urband
(1977) 68 CA3d 796, 798 (appellate court refused to disturb trial court's exercise of discretion in
awarding custody to mother who, because of religious beliefs, "would not consent to a blood
transfusion if one were ever necessary, … would not permit the children to participate in
competitive sports, and … would not permit them to participate conventionally in certain
holidays"). Particularly in child custody cases, because the trial judge, having heard the evidence
and observed the witnesses, their demeanor, attitude, candor or lack of candor, is seen as best
qualified to pass on and determine the factual issues presented by their testimony, the trial judge's
discretion is broad and will seldom be reversed on appeal. Marriage of Lewin (1986) 186 CA3d 1482,
1492.

However, the judge must exercise that discretion based on a consideration of all of the evidence. A
failure of the trial court to consider all the evidence is a failure to exercise discretion and requires
reversal of the determination. Schlumpf v Superior Court (1978) 79 CA3d 892, 900 (when children
had lived with father and his wife in Wyoming for several years and both Wyoming and California
had jurisdiction over child custody, more evidence regarding best interests of children was to be
found in Wyoming, and lower court erred in denying father's petition for change of venue).
Similarly, a custody determination must be based on substantial evidence; an order based on no
evidence or on evidence that is not "substantial" is also an abuse of discretion. Marriage of Russo
(1971) 21 CA3d 72, 86. The term "substantial evidence" means evidence of ponderable legal
significance, and that is "reasonable in nature, credible, and of solid value." It must be actually
substantial proof of the essentials that the law requires in a particular case. Marriage of Russo (1971)
21 CA3d 72, 87 (appellate court reversed trial court's order changing custody from mother to father
based on mother's having live-in boyfriend, when reviewing court found it impossible to ascertain
what evidence had been considered by trial court).

Finally, the court's discretion must be exercised impartially and cannot rest on bias or prejudice,
for example, by having a fixed opinion against a particular type of custody arrangement. Marriage
of Schwartz (1980) 104 CA3d 92, 95 (parents entitled to order based on court's review of all evidence
before it, as well as on exercise of impartial legal discretion, but trial court's prejudice against
custody arrangement that split up siblings "made the hearing a mere formality—a foregone
conclusion"). That discretion cannot be exercised based on principles contrary to the California or
federal constitutions. Marriage of Candiotti (1995) 34 CA4th 718, 725 (restraining order impinging
on parent's right to speak about another adult, outside children's presence, constituted undue prior
restraint of speech). But see Marriage of Hartmann (2010) 185 CA4th 1247 (injunction not
unconstitutional prior restraint on wife's First Amendment rights when it prohibited only speech
that interfered with custody order).

§12.4 IV. NEED TO ACT IN CHILD'S BEST INTEREST

The principle of the best interest of the child is the sine qua non of the family law process
governing custody disputes. Banning v Newdow (2004) 119 CA4th 438, 447.

However, the Family Code does not define "best interest of the child" beyond the list of factors the
court is required to consider, set forth in Fam C §3011 and elsewhere in the Family Code (as is
discussed below).

The court must apply the standard of the best interest of the child. Burchard v Garay (1986) 42 C3d
531, 539 (error for court to use comparative income or economic advantage as basis for custody
award); Marriage of Carney (1979) 24 C3d 725 (error for court to rely on parent's physical handicap
as prima facie evidence of person's unfitness as parent). Failure to do so is reversible error.
Marriage of Stoker (1977) 65 CA3d 878 (custody order reversed because trial court applied principle
of "unclean hands" rather than best interest of child).

§12.5 V. NO PREFERENCE FOR JOINT OR SOLE CUSTODY

Family Code §3040(a)(1)–(3) establishes an order of preference in awarding custody. The first
preference is "to both parents jointly … or to either parent." Fam C §3040(a)(1).
However, Fam C §3040(d) expressly cautions that it establishes neither a preference nor a
presumption for or against joint legal custody, joint physical custody, or sole custody, and
reiterates the court's "widest discretion" in making custody orders.

On the presumption that joint custody is in a child's best interest, based on the parties' agreement,
see §12.7.

§12.6 VI. STATUTORY FACTORS AFFECTING BEST INTERESTS OF CHILD

Family Code §3011 requires the court to consider four categories of factors in making a
determination of the best interest of the child. These broad categories include (Fam C §3011)

The health, safety, and welfare of the child;

Spousal or child abuse;

The nature and amount of contact with the parents; and

Habitual or continual use of illegal drugs, or habitual or continual abuse of alcohol or

prescribed controlled substances.

The court must also consider which parent is more likely to allow the child frequent and
continuing contact with the noncustodial parent, consistent with Fam C §§3011 and 3020. Fam C
§3040(a)(1). In addition, the court may consider "any other factors it finds relevant," consistent
with Fam C §3020. Fam C §3011.

§12.7 A. Effect of Parties' Agreement

Although, under Fam C §3011, the court must consider various enumerated factors in making its
custody determination, that requirement does not apply if the parties stipulate in writing or on the
record regarding custody or visitation. Fam C §3011(a)(5)(B).

The very existence of an agreement between the parties can give rise to a presumption. Family
Code §3080 provides that there is a presumption, affecting the burden of proof, that joint custody
is in the best interest of a minor child, subject to Fam C §3011, if the parents have agreed to joint
custody or so agree in open court at a hearing for the purpose of determining the child's custody.
However, the absence of an agreement for joint custody does not preclude a court order of joint
custody. Fam C §3081. Furthermore, while private resolutions are preferred, the existence of an
agreement on custody does not preclude the court from making an order it deems necessary for
the child's best interest. See generally Montenegro v Diaz (2001) 26 C4th 249, 255; Elkind v Byck
(1968) 68 C2d 453, 457; Stewart v Stewart (1955) 130 CA2d 186, 193.

For temporary custody orders, the agreement need not be in writing or on the record; if the parties
have an agreement or understanding on the custody or temporary custody of their children and
present it to the court by way of attachment or affidavit (or declaration), the court must, except in
extraordinary circumstances, enter an order granting temporary custody in accordance with the
agreement or understanding "as promptly as possible." Fam C §3061.

§12.8 B. Health, Safety, and Welfare of Child

Family Code §3011(a)(1) requires a court to consider the health, safety, and welfare of the child in
determining the child's best interest. While Fam C §3011 does not elevate the health, safety, and
welfare factor over any other, it is one of only four factors, and the only "primary" factor that the
legislature incorporated into its "findings and declarations" as the public policy of California
regarding child custody and visitation. Fam C §3020. Family Code §3020(a) states the legislative
finding and declaration that it is California's public policy to ensure that the health, safety, and
welfare of children is the court's primary concern in determining the best interest of children for
purposes of making orders regarding legal or physical custody or visitation.

The superseding nature of this factor is evident from Fam C §3020(a), which provides that when
the public policy of considering the health, safety, and welfare of the child conflicts with the public
policy of assuring that children have frequent and continuing contact with both parents (Fam C
§3020(b)), the custody and visitation order must ensure the health, safety, and welfare of the child
and the safety of all family members.

The need to protect the child's health, safety, and welfare is reiterated elsewhere in the Family Code
and in the California Rules of Court pertaining to child custody.

California Rules of Court 5.220(b) expressly states that the purpose of a child custody evaluation is
to assist the court in "determining the health, safety, welfare, and best interest of the children."
That rule goes on to define a child custody evaluation as an "expert investigation and analysis of
the health, safety, welfare, and best interest of children with regard to disputed custody and
visitation issues." Cal Rules of Ct 5.220(c)(3).

In addition, court-connected child custody mediation must provide assistance to the parties in
developing a parenting plan that protects the health, safety, welfare, and best interest of the child.
Cal Rules of Ct 5.210(e)(4). Indeed, the rule pertaining to such mediation defines "parenting plan" as
a plan describing how the parties share decision-making and caretaking responsibilities to protect
the health, safety, welfare, and best interest of each child. Cal Rules of Ct 5.210(c)(2).

If a court finds that a parent knowingly and with the intent to interfere with the other parent's
lawful contact with the child has made a false sexual abuse report against the other parent, the
court may limit the reporting parent's custody or visitation or order supervised visitation, but only
after determining that the limitation is necessary to protect the child's health, safety, and welfare.
Fam C §3027.5(b).

A person convicted of first degree murder of the other parent of a child may not be granted
custody of or unsupervised visitation with the child, unless the court finds that there is no risk to
the child's health, safety, and welfare, and states its reasons for so finding in writing or on the
record. Fam C §3030(c).

C. Abuse of Child, Spouse, or Cohabitant

§12.9 1. Relationship of Perpetrator and Victim; Corroboration

The second enumerated statutory factor that a court must consider is a history of abuse by a
parent (or other person seeking custody) against any of the following (Fam C §3011(a)(2)(A)):

Any child to whom he or she is related by blood, affinity, or by a caretaking relationship (no
matter how temporary);

The other parent; or

A parent, current spouse, or cohabitant of the person seeking custody, or anyone whom the
parent or person is dating or engaged to.

A court may require independent corroboration of allegations of such abuse. Fam C §3011(a)(2)(B).
Such corroboration includes, but is not limited to, written reports by law enforcement agencies,
child protective services or other social welfare agencies, courts, medical facilities, or other public
agencies or private nonprofit organizations providing services to victims of sexual assault or
domestic violence. Fam C §3011(a)(2)(B). The court may not, however, ignore an existing DVPA
restraining order and require corroboration by a victim of domestic violence in reliance on Fam C
§3011. A DVPA order necessarily triggers the Fam C §3044 presumption. Christina L. v Chauncey B.
(2014) 229 CA4th 731, 735.

§12.10 2. Presumption Raised by Finding of Domestic Violence

If a court has made a finding of domestic violence (see §12.11) against the other party seeking
custody or against a child's sibling within the previous 5 years, there is a rebuttable presumption
that awarding sole or joint physical or legal custody of the child to the perpetrator is detrimental to
the child's best interest. Fam C §3044(a); Marriage of Fajota (2014) 230 CA4th 1487; F.T. v L.J. (2011)
194 CA4th 1, 28. See Fam C §§3011 and 3020 (considerations in determining best interest, and
referred to in Fam C §3044(a)).

It is an abuse of discretion to circumvent Fam C §3044(a) by awarding "50-50 timeshare" visitation

to a parent against whom a domestic violence restraining order has issued. Celia S. v Hugo H. (2016)
3 CA5th 655, 658.

A court must give notice of this rebuttable presumption "in a custody or restraining order
proceeding" to the parties and "give them a copy of this section prior to a custody mediation in the
case." Fam C §3044(h). The statute requires notice before a custody mediation, and therefore if
there is no custody dispute and custody mediation has not been set, a party is not entitled to notice
of the presumption during temporary restraining order proceedings. Sabbah v Sabbah (2007) 151
CA4th 818, 825.

§12.11 3. 'Domestic Violence' Defined for Purpose of Presumption

For the purposes of giving rise to the presumption of detriment in Fam C §3044 (see §12.10), a
person has "perpetrated domestic violence" when he or she is found by the court to have done any
of the following:

Intentionally or recklessly caused or attempted to cause bodily injury or sexual assault;

Placed a person in reasonable apprehension of imminent serious bodily injury to that person
or to another; or

Engaged in behavior involving, but not limited to, threatening, striking, harassing, destroying
personal property, or disturbing the peace of another.

A showing of the probability of future abuse is not required to issue a DVPA restraining order.
Rather, a trial court may issue a protective order under the DVPA simply on the basis of an affidavit
showing past abuse. Nakamura v Parker (2007) 156 CA4th 327, 337. Similarly, renewal of a
restraining order under Fam C §6345 does not require that the protected party introduce, or the
court consider, actual acts of abuse the restrained party committed after the original order went
into effect. Perez v Torres-Hernandez (2016) 1 CA5th 389, 397 (test for renewal is whether court finds
by preponderance of evidence that protected party has reasonable apprehension of future abuse).
The term "disturbing the peace of the other party" in Fam C §6320 refers to conduct that destroys
the mental or emotional calm of the other party. Burquet v Brumbaugh (2014) 223 CA4th 1140, 1142.
It includes accessing, reading, and publicly disclosing a spouse's confidential texts and e-mails.
Marriage of Evilsizor & Sweeney (2015) 237 CA4th 1416, 1424 (texts); Marriage of Nadkarni (2009) 173
CA4th 1483, 1498 (e-mails). It also includes engaging in an e-mail campaign against a spouse
directed to the spouse's employer and friends. Altafulla v Ervin (2015) 238 CA4th 571. Compare
Altafulla with Molinaro v Molinaro (2019) 33 CA5th 824, 831 (restraining order prohibiting husband
from posting anything about divorce on Facebook is overbroad and infringes on his free speech
rights). Additionally, it includes consensual sex as part of the pattern of violence followed by
attempted reconciliation. Marriage of Fregoso and Hernandez (2016) 5 CA5th 698, 703.

On making such a finding, a court may issue an ex parte order under the Domestic Violence
Prevention Act (DVPA) (Fam C §§6300–6409) to protect the other party seeking custody of the
child or to protect the child, the child's siblings, and any family pets. Fam C §3044(c). See Fam C
§6320. Because a restraining order under the DVPA must be based on a finding that the party
being restrained committed one or more acts of domestic abuse, a finding of domestic abuse
sufficient to support a DVPA restraining order necessarily triggers the presumption in Fam C
§3044. Ellis v Lyons (2016) 2 CA5th 404, 416; Christina L. v Chauncey B. (2014) 229 CA4th 731, 736;
S.M. v E.P. (2010) 184 CA4th 1249, 1267. Although the §3044 presumption is rebuttable, a court
must apply it in any situation in which a finding of domestic violence has been made, and
regardless of whether a restraining order has been issued. Marriage of Fajota (2014) 230 CA4th
1487, 1499.

For purposes of Fam C §3044, the requirement of a finding by the court is satisfied by, but not
limited to, evidence that a party seeking custody has been convicted within the previous 5 years,
after a trial or a plea of guilty or no contest, of a crime against the other party that comes within
the definition of domestic violence contained in Fam C §6211 or of abuse contained in Fam C
§6203. These offenses include, but are not limited to, the crimes described in Pen C §243(e), §261,
§262, §273.5, §422, or §646.9. Fam C §3044(d)(1).

The court that makes a finding that a party has perpetrated domestic violence need not be the
court that hears or has heard the child custody proceedings; the finding may be made by any court
based on conduct occurring within the previous 5 years. Fam C §3044(d)(2). However, the finding
may not be based solely on conclusions of a child custody evaluator or recommendation by Family
Court Services, but must be based on a court's consideration of any relevant, admissible evidence
submitted by the parties. Fam C §3044(e).

Similarly, a family court has the authority to renew a restraining order that was originally issued
by a juvenile court. Fam C §6345(a); Garcia v Escobar (2017) 17 CA5th 267, 272 (Fam C §6345 not
limited to restraining orders originating in family court); Priscilla N. v Leonardo G. (2017) 17 CA5th
1172, 1213 (legislature intended juvenile and family courts to work together to protect victims of
domestic violence).

§12.12 4. Effect of Parent's Absence or Relocation as Result of Domestic Violence

In determining custody or visitation, the court must not consider a parent's absence or relocation
from the family residence if the absence or relocation is owing to actual or threatened violence by
the other party. Fam C §3046(a)(2).

§12.13 5. Rebuttal of Presumption

To overcome the Fam C §3044(a) presumption, the court must find (Fam C §3044(b)(1))

The perpetrator of domestic violence has demonstrated that giving sole or joint physical or
legal custody of a child to the perpetrator is in the best interest of the child under Fam C
§§3011 and 3020; however, in determining the best interest of the child, the preference for
frequent and continuing contact with both parents (Fam C §3020) or with the noncustodial
parent (Fam C §3040(a)(1)) may not be used to rebut the presumption, in whole or in part; and

That on balance, the factors below support the legislative findings of Fam C §3020 (Fam C
§3044(b)(2)):

The perpetrator has successfully completed a batterer's treatment program;

If appropriate, the perpetrator has successfully completed a program of alcohol or drug

abuse counseling;

If appropriate, the perpetrator has successfully completed a parenting class;

The perpetrator is on probation or parole and has or has not complied with its terms and
conditions;

The perpetrator is restrained by a protective order or restraining order and has or has
not complied with its terms and conditions; and

The perpetrator has committed further acts of domestic violence.

However, evidence of matters occurring years before the hearing may be deemed too remote to be
considered. See Fam C §3044(d)(2); Marriage of Mentry (1983) 142 CA3d 260 (2 years too remote
when facts of father's molestation never established and mother had not objected to visitation
during interim).
For three cases addressing the rebuttal of the Fam C §3044 presumption, see Jason P. v Danielle S.
(2017) 9 CA5th 1000, 1027 (when father found to have committed act of domestic violence against
mother, error to find prospectively that Fam C §3044 presumption would be rebutted and father
would be awarded joint custody after domestic violence counseling); Celia S. v Hugo H. (2016) 3
CA5th 655, 762 (trial court order allowing abusive father 5050 "visitation" was necessarily joint
physical custody award and was improper absent his establishing that arrangement was in child's
best interest); Ellis v Lyons (2016) 2 CA5th 404, 415 (trial court's express reliance on Fam C §3020
preference for frequent and continuing contact required reversal of custody ruling).

When the court determines that the Fam C §3044(a) presumption has been overcome, it must
make specific findings on each of the factors in Fam C §3044(b). It must state its reasons in writing
or on the record as to why Fam C §3044(b)(1) is satisfied and why the factors in Fam C §3044(b)(2)
on balance, support the legislative findings in Fam C §3020. Fam C §3044(f). In Jaime G. v H.L.
(2018) 25 CA5th 794, 803, the court found that by enacting the seven factors in the rebuttable
presumption statute, the legislature created a mandatory checklist for family courts to use.

§12.14 6. Effect of Issuance of Domestic Violence Protective Order or Emergency Protective

Order

When custody or visitation is at issue, the trial court should consider whether any emergency
protective orders (EPOs) or other restraining orders are currently in effect. By statute, the court is
encouraged not to make orders inconsistent with such orders without findings that the custody or
visitation order cannot be made consistent with the restraining orders and that the custody or
visitation order is in the best interest of the child. Fam C §3031(a).

Whenever custody or visitation is granted to a parent in a case in which domestic violence is

alleged and an emergency or other protective or restraining order has been issued, the custody or
visitation order must specify the time, day, place, and manner of transfer of the child for custody or
visitation to limit the child's exposure to potential domestic conflict or violence and to ensure the
safety of all family members. When the court finds a party is staying in a place designated as a
shelter for victims of domestic violence or other confidential location, the court's order for time,
day, place, and manner of transfer of the child for custody or visitation must be designed to prevent
disclosure of the location of the shelter or other confidential location. Fam C §3031(b).
 NOTE:

A minor or the minor's guardian may petition the court to have information regarding the minor that
was obtained when issuing a protective order be kept confidential. Such information includes, but is
not limited to, the minor's name and address and the circumstances surrounding the protective
order with respect to that minor. Fam C §6301.5.

§12.15 7. Effect on Visitation of Court's Finding of Domestic Violence

If a domestic violence protective order has been directed to a parent, the court must consider
whether the best interest of the child require visitation to be monitored by a third person, or be
suspended, limited, or denied. Further, the court must include in its deliberation the nature of acts
from which a parent has been enjoined and the period of time elapsed since issuance of the
injunctive order. Fam C §3100(b).

§12.16 8. Statement of Reasons and Details

If custody or visitation has been awarded to a parent despite an accusation of domestic violence,
unless the parties have stipulated to the custody arrangement, the court must state its reasons for
the custody order. In addition, the order must specify the details of the child's transfer between
parents so as to minimize the child's exposure to violence or conflict. Fam C §3011(a)(5).

In A.G. v C.S., the court of appeal found that the trial court's award of sole custody to her father was
proper, despite the mother's claim that he abused alcohol. In that case, substantial evidence
supported an implied finding that the trial court had considered the father's history of alcohol use,
and the settled statement adequately articulated the trial court's reasons for granting sole custody
—namely, a lack of evidence to support the claim of alcohol abuse, and the mother's long history of
running away, refusing to share custody, and apparent mental instability. A.G. v C.S. (2016) 246
CA4th 1269, 1284.

NOTE:

An order denying a petition for an ex parte DVPA order under Fam C §6320 must include the
reasons for denying the petition. Fam C §6320.5(a). In addition, when a petitioner's moving papers
present factual allegations that are facially adequate to show "abuse" within the meaning of the
DVPA, a court's peremptory denial of relief without a hearing is an abuse of discretion. Nakamura v
Parker (2007) 156 CA4th 327, 337.
D. Child Abuse

§12.17 1. Consideration of History of Child Abuse

A trial court must consider a history of abuse against a child in determining the best interests of
the child. Fam C §3011(a)(2)(A).

§12.18 2. Denial of Custody Based on Sexual Abuse or Offenses

Sexual molestation or any abuse of a minor, or the requirement that the parent register as a sex
offender, justifies a denial of custody. Fam C §3030(a).

A parent who has been convicted of child abuse under Pen C §273a, §273d, §647.6, or a person
required to register as a sex offender must not be awarded custody or unsupervised visitation
unless the court finds that there is "no significant risk" to the child and states its reasons in
writing or on the record. Fam C §3030(a)(1).

In addition, no person may be granted physical or legal custody of, or unsupervised visitation with,
a child if anyone residing in the person's household is required, as a result of a felony conviction in
which the victim was a minor, to register as a sex offender under Pen C §290, unless the court
finds there is no significant risk to the child and states its reasons in writing or on the record. Fam
C §3030(a)(2).

A child may not be placed in the home in which a registered sex offender or child abuser resides,
and may not be permitted to have unsupervised visitation with that person, unless a court states
its reasons in writing or on the record. Fam C §3030(a)(2).

The fact that a child is permitted unsupervised contact with a person who is required, as a result of
a felony conviction in which the victim was a minor, to be registered as a sex offender under Pen C
§290, is prima facie evidence that the child is at significant risk. When a court is making a
determination regarding significant risk to the child, the prima facie evidence constitutes a
presumption affecting the burden of producing evidence. However, this presumption does not
apply if there are factors mitigating against its application, including whether the party seeking
custody or visitation is also required, as the result of a felony conviction in which the victim was a
minor, to register as a sex offender under Pen C §290. Fam C §3030(a)(3).
 NOTE:

There are grounds for modification or termination of custody or visitation based on a child (1) being
in the legal or physical custody of, or subject to unsupervised visitation with, a person who is
required to register as a sex offender for committing a felony against a minor or (2) having a legal or
physical custodian or person who visits the child without supervision who lives with such a
registered sex offender. See Fam C §3030.5. On modification in general, see chaps 16–17.

3. False Allegations of Child Abuse

§12.19 a. Change or Reconsideration of Custody

A parent's custody or visitation may be limited or a court may order supervised visitation if the
court finds substantial evidence that the parent made a report of child sexual abuse knowing the
report was false and with the intent to limit the other parent's contact with the child. The
limitation may be made only after the court has determined that it is necessary to protect the
health, safety, and welfare of the child and only after considering the policy of ensuring frequent
and continuing contact for the child with both parents. Fam C §3027.5(b).

A motion for reconsideration of a child custody order must be granted if the order is based on the
other parent's conviction of falsely accusing the moving parent of child abuse. Fam C §3022.5.

§12.20 b. Limitation for Reasonable Belief

A parent may not be placed on supervised visitation or have custody or visitation denied or limited
because the parent made a report or took other lawful action based on a reasonable belief that the
child was a victim of sexual abuse. Fam C §3027.5(a).

§12.21 c. Sanctions for False Allegations

A court may order sanctions against a party, attorney, or witness, if the court determines, based on
the investigation of allegations of child abuse (including sexual abuse) described in Fam C §3027 or
on other evidence presented to it, that an accusation of child abuse or neglect made during a child
custody proceeding is false and the person making the accusation knew it to be false when the
accusation was made. Potential sanctions include reasonable money sanctions, not to exceed all
costs incurred by the party accused as a direct result of defending the accusation, and reasonable
attorney fees incurred in recovering the sanctions, against the person making the accusation. See
Fam C §3027.1(a).

Equitable principles apply in determining the timing for filing a motion under §3027.1. In general,
the moving party must file the motion "on or before the earliest of 60 days after the judgment or
order exonerating him [or her] is served, or 180 days from the entry of such judgment or order."
These deadlines correspond to time periods set forth in Cal Rules of Ct 3.1702 and 8.104 and, if
applicable, Cal Rules of Ct 8.108, which apply to family law proceedings through the application of
Cal Rules of Ct 5.2(d). The parties may, by stipulation filed before the expiration of the time allowed
under Cal Rules of Ct 3.1702(b)(1), extend the time for filing a motion for attorney fees. Cal Rules of
Ct 3.1702(b)(2). If a party moves for Fam C §3027.1 sanctions after these presumptive deadlines, he
or she bears the burden of showing that the delay was excused and that the delay did not result in
undue prejudice to the opposing party or person who is the subject of the sanctions motion. Robert
J. v Catherine D. (2009) 171 CA4th 1500, 1522.

A finding of a false allegation of child abuse need not be made before the request for Fam C §3027.1
sanctions; the trial court may consider that issue at the sanctions hearing. Marriage of Dupre (2005)
127 CA4th 1517.

E. Abuse of Alcohol or Controlled Substances

§12.22 1. Effect on Child's Best Interests

A court's determination of what constitutes the child's best interest must also include
consideration of either parent's habitual or continual illegal use of controlled substances, or
habitual or continual abuse of alcohol or prescribed controlled substances; however, the court may
require independent corroboration of such allegations. Fam C §3011(a)(4).

§12.23 2. Statement of Reasons and Details

When custody or visitation has been awarded to a parent despite an accusation of alcohol or drug
abuse, unless the parties have stipulated to the custody arrangement, a court must state its
reasons for the custody order, and the order must specify the details of the child's transfer between
parents so as to minimize the child's exposure to violence or conflict. Fam C §3011(a)(4).

However, the provisions of Fam C §3011(a)(4), absent other authority, do not provide authority for
court-ordered mandatory drug or alcohol testing. Wainwright v Superior Court (2000) 84 CA4th
262. In response to concerns expressed in Wainwright, the legislature enacted Fam C §3041.5,
which permits drug or alcohol testing in certain circumstances. See §12.24.

§12.24 3. Drug or Alcohol Testing

Under Fam C §3041.5, a trial court may order drug or alcohol testing if it determines by a
preponderance of the evidence that a parent engages in habitual, frequent, or continual use of such
substances. Evidence of such use may include, but may not be limited to, a conviction within the
last 5 years for the illegal use or possession of a controlled substance. A court must order the least
intrusive method of testing for the illegal use of controlled substances or the habitual or continual
abuse of alcohol by either or both parents or the legal custodian.

The testing must be performed in conformance with procedures and standards established by the
United States Department of Health and Human Services for drug testing of federal employees.
Fam C §3041.5. Currently, only urine testing is permitted under federal standards, and therefore
under Fam C §3041.5; the court may not order a hair follicle drug test. Deborah M. v Superior Court
(2005) 128 CA4th 1181.

Drug testing may be ordered for an indefinite period as a condition of increased and eventual
unmonitored visitation. Heidi S. v David H. (2016) 1 CA5th 1150.

A parent or legal custodian who has undergone drug testing has the right to a hearing, if
requested, to challenge a positive test result. A positive test result, even if challenged and upheld,
does not, by itself, constitute grounds for an adverse custody decision. Determining the best
interest of the child requires weighing all relevant factors. Fam C §3041.5.

The testing is confidential, and the results are sealed. Any breach of confidentiality may be subject
to civil sanctions. Fam C §3041.5.

§12.25 F. Child Conceived by Parental Rape

A parent whose child was conceived as a result of forcibly raping the other parent (see Pen C §261)
and who was convicted of that crime must not be granted custody. Fam C §3030(b).

§12.26 G. Parental Murder

A parent convicted of first-degree murder of the other parent must not be granted custody or
unsupervised visitation unless the court finds that there is no risk to the child's health, safety, and
welfare. Fam C §3030(c). In making its finding, the court may consider, among other things, the
following factors (Fam C §3030(c)):

The wishes of the child, if the child is of sufficient age and capacity to reason so as to form an
intelligent preference.

Credible evidence that the convicted parent was a victim of abuse, as defined in Fam C §6203,
committed by the deceased parent. That evidence may include, but is not limited to, written
reports by law enforcement agencies, child protective services or other social welfare agencies,
courts, medical facilities, or other public agencies or private nonprofit organizations providing
services to victims of domestic abuse.

Testimony of an expert witness, qualified under Evid C §1107, that the convicted parent
experiences "intimate partner battering" syndrome.

Unless and until a custody or visitation order is issued under Fam C §3030(c), no person may
permit or cause the child to visit or remain in the custody of the convicted parent without the
consent of the child's custodian or legal guardian. Fam C §3030(c).

§12.27 H. Nature and Amount of Child's Contact With Both Parents

Under Fam C §3011(a)(3), a court must consider the nature and amount of contact of the child with
both parents in making a determination of the best interests of a child.

§12.28 I. Allowance of Frequent and Continuing Contact

A court is required to consider, among other factors, which parent is more likely to allow the child
or children frequent and continuing contact with the noncustodial parent, consistent with the
provisions of Fam C §§3011 and 3020. Fam C §3040(a).

For example, in Catherine D. v Dennis B. (1990) 220 CA3d 922, 931, the court held that a mother's
intentional frustration of the father's visitation rights should be considered in an application for a
change of custody. See also Marriage of LaMusga (2004) 32 C4th 1072; Montenegro v Diaz (2001) 26
C4th 249; Moffat v Moffat (1980) 27 C3d 645, 652.

Note also that a court may order a change of physical custody solely because the custodial parent
attempted to sever the relationship between the noncustodial parent and the children. Marriage of
Wood (1983) 141 CA3d 671, 683.
§12.29 J. Effect of Parental Absence or Relocation

Parental absence or relocation is not a custody factor if the absence or relocation is of short
duration and during that time the party has demonstrated an interest in maintaining custody or
visitation, the party maintains or makes reasonable efforts to maintain, contact with the child, and
the party's behavior demonstrates no intent to abandon the child. Fam C §3046(a)(1). But see
Marriage of Bryant (2001) 91 CA4th 789 (father's absence from family home during 18 months of
attempted reconciliation demonstrated that mother was custodial parent for purposes of move-
away determination). Note that the Supreme Court in Marriage of LaMusga (2004) 32 C4th 1072,
1100 criticized the Bryant decision insofar as it overstated the importance of the trial court's
finding that the mother was not acting in bad faith, instead of looking to the motive of the move as
a factor that "may be relevant."

A parent's absence or relocation is also not a factor if the parent is absent or relocates because of
actual or threatened domestic violence by the other party. Fam C §3046(a)(2).

A court may consider attempts by one party to interfere with other party's regular contact with
the child in determining if the party has satisfied the requirements of Fam C §3046(a). Fam C
§3046(b).

Family Code §3046 does not apply to a party against whom domestic violence protective orders,
residence exclusion orders, civil harassment protective orders, or criminal protective orders have
been issued, or to a party who has abandoned a child as defined in Fam C §7822. Fam C §3046(c).

Relocation related to military deployment. In addition, a parent's absence, relocation, or failure to

comply with custody and visitation orders, alone, will not justify a modification of a custody or
visitation order if the reason for the absence, relocation, or failure to comply is the party's
activation to military service and deployment out of state. Fam C §3047(a). When a court is asked
to enforce an unconditional reinstatement order for a servicemember returning from deployment,
it should conduct a limited inquiry into the child's best interest, restricting its analysis to the types
of serious concerns suggested by the legislative history of the 2012 amendment to Fam C §3047.
See Assembly Judiciary Committee Analysis of AB 1807 (Mar. 29, 2012) (child was very young at the
time of deployment or returning parent has mental or physical health issues that affect his or her
parenting ability). Marriage of E.U. & J.E. (2013) 212 CA4th 1377, 1391.
 NOTE:

If a party with sole or joint physical custody or visitation is deployed or mobilized and the military
orders require the party to move a substantial distance or otherwise materially affect his or her
ability to exercise custody or visitation rights, any necessary modification of the existing custody
order will be deemed a temporary custody order made without prejudice, subject to review and
reconsideration on the party's return. Fam C §3047(b)(1). When a parent returns from deployment,
custody "shall revert to the order that was in place before the modification, unless the court
determines that it is not in the best interest of the child." Fam C §3047(b)(2); Marriage of Vargas &
Ross (2017) 17 CA5th 1235, 1243. Other special provisions apply in such cases, as set forth in Fam C
§3047.

VII. OTHER FACTORS AFFECTING BEST INTERESTS OF CHILD

§12.30 A. Parental Conflict

Serious parental strife and inability of one parent to cooperate with the other parent are reasons to
deny a request for joint legal custody. Marriage of McLoren (1988) 202 CA3d 108.

§12.31 B. Emotional Neglect or Abuse of Child

A parent's emotional neglect or abuse of a child appears to be an appropriate basis for awarding
sole physical custody of the child to the other parent. While this ground is not expressly stated in
the Family Code, it appears implied from the statutory provisions concerning a court's
consideration of a child's health, safety, and welfare, and of a parent's history of abuse against "any
child to whom he or she is related by blood or affinity." See Fam C §3011(a)(1); Fam C §3011(a)(2)(A)
("abuse against a child" refers to Pen C §11165.6, including definition of "neglect" in Pen C §11165.2,
which means negligent treatment or maltreatment causing death or harm or threatened harm to
child's health or welfare). See also Fam C §3020(c); Marriage of Slayton & Biggums-Slayton (2001) 86
CA4th 653, 657 (unsupervised young child was in situation of "immediate harm").

§12.32 C. Parent's Best Interests Are Subordinate to Child's

Except as they affect the best interests of the child, the parents' interests cannot be considered by
the court. Marriage of Russo (1971) 21 CA3d 72, 83.
§12.33 D. Child's Expressed Preference

If a child is of "sufficient age and capacity to reason as to form an intelligent preference," the trial
court must "consider and give due weight to" the child's preference. Fam C §3042(a). However, the
wishes of the child are not conclusive on the issue of the child's best interest, but only one factor to
be considered. Marriage of Mehlmauer (1976) 60 CA3d 104, 110. In Marriage of Mehlmauer, for
example, the court held that the 14-year-old child involved should remain with his mother, despite
his expressed preference to live with his father, because the "best interests" of the child would be
served if he remained with the mother. The child's preference was not binding on the court and the
court was "not persuaded his preference was supported by any mature reasoning process."

Assuming a child is of sufficient age and capacity to form an intelligent preference, that preference
is entitled to greater consideration in a modification hearing than in an initial custody proceeding,
because in the initial determination there is more uncertainty about how the future arrangement
will work out, whereas in the modification action the child's preference is based on experience, and
therefore is better informed. Marriage of Rosson (1986) 178 CA3d 1094, 1103 (children 10 and 13
years old), overruled on other grounds in Marriage of Burgess (1996) 13 C4th 25.

In some cases, evidence of a child's preference may be given by the child directly. On and after
January 1, 2012, if the child is 14 years or older and wishes to address the court regarding custody
or visitation, the child must be permitted to do so, unless the court determines that doing so is not
in the child's best interest. In that case, the court must state its reasons for that finding on the
record. Fam C §3042(c). A child who is less than 14 years old may also be permitted to address the
court regarding custody or visitation, if the court determines that is appropriate pursuant to the
child's best interest. Fam C §3042(d). If the court precludes the calling of a child as a witness, it
must provide alternative means of obtaining input from the child and other information regarding
the child's preferences. Fam C §3042(e); Marriage of Winternitz (2015) 235 CA4th 644.

California Rules of Court 5.250 implements Fam C §3042 by establishing guidelines for
determining whether a child wishes to provide input and, if so, if the input is to be in the form of
testimony, by a custody evaluation, by a child interview, or by some other means. The court must
make these determinations on a case-by-case basis. Cal Rules of Ct 5.250(a).

§12.34 E. Stability of Environment

Stability of environment is an important factor for the court to consider in determining the child's
best interest, and courts have held this to be essential for both a child's happiness and proper
development. Marriage of Levin (1980) 102 CA3d 981, 988. See, e.g., Marriage of Stoker (1977) 65 CA3d
878 (temporary custody awarded to mother on showing that child had been residing in stable
home and good environment); Marriage of Mehlmauer (1976) 60 CA3d 104, 109 (all things essentially
equal, it was considered beneficial to leave the child in the accustomed environment).

In at least one reported decision, the stability of a child's accustomed environment was held to
override the parental-preference doctrine that then existed. In re Volkland (1977) 74 CA3d 674.

However, duration of a living situation is not determinative. In Ragghanti v Reyes (2004) 123 CA4th
989, for example, a court awarded custody to a father even though the child had lived with the
mother for the first 6 years of her life. Because no final, permanent custody determination had
been made, the trial court was free to use the "best interest" analysis and concluded that the father
was better able than the mother to care for the child.

The stability of a child's environment has evolved as a significant factor when there is a request to
modify the status quo. In Marriage of Levin (1980) 102 CA3d 981, 988, the court held that "a child's
custody, especially that of a comparatively young child, should not be changed except for very
compelling reasons." That holding reflects the view of the supreme court in its formulation of the
"changed circumstances" standard for custody modification (Marriage of Carney (1979) 24 C3d 725,
730):

It is settled that to justify ordering a change in custody there must generally be a persuasive
showing of changed circumstances affecting the child. [Citation.] And that change must be
substantial: a child will not be removed from the prior custody of one parent and given to the other
"unless the material facts and circumstances occurring subsequently are of a kind to render it
essential or expedient for the welfare of the child that there be a change." [Citation.] The reasons for
the rule are clear: "It is well established that the courts are reluctant to order a change of custody
and will not do so except for imperative reasons; that it is desirable that there be an end of
litigation and undesirable to change the child's established mode of living."

On operation of the "changed circumstances" standard, see chap 17 and the following cases:
Montenegro v Diaz (2001) 26 C4th 249; Burchard v Garay (1986) 42 C3d 531.

§12.35 F. Quality of Companionship and Ability to Love (The 'Psychological Parent')

The "essence of parenting" has been defined as the ethical, emotional, and intellectual guidance of a
child. Marriage of Carney (1979) 24 C3d 725, 738. As described by the supreme court in Marriage of
Carney (24 C3d at 739):

Contemporary psychology confirms what wise families have perhaps always known—that the
essence of parenting is not to be found in the harried rounds of daily carpooling endemic to
modern suburban life, or even in the doggedly dutiful acts of "togetherness" committed every
weekend by well-meaning fathers and mothers across America. Rather, its essence lies in the
ethical, emotional, and intellectual guidance the parent gives to the child throughout his formative
years, and often beyond. The source of this guidance is the adult's own experience of life; its motive
power is parental love and concern for the child's well-being; and its teachings deal with such
fundamental matters as the child's feelings about himself, his relationships with others, his system
of values, his standards of conduct, and his goals and priorities in life.

The essence of custody itself has been defined in part as the "companionship of the child." Marriage
of Russo (1971) 21 CA3d 72, 89.

§12.36 G. Parent's Physical and Mental Condition

A parent's physical or mental handicap or condition may be taken into account in a child custody
determination only if "the parent's condition will in fact have a substantial and lasting adverse
effect on the best interests of the child." Marriage of Carney (1979) 24 C3d 725, 736 (quadriplegic
father). See Fam C §3049; Manela v Superior Court (2009) 177 CA4th 1139, 1150. A court may not
base a custody order on the mere presence of a physical or mental condition; the court "must view
the handicapped person as an individual and the family as a whole." Marriage of Carney, supra.
Instead, the court should inquire into the person's actual and potential physical capabilities, learn
how he or she has adapted to the disability and manages its problems, consider how the other
members of the household have adjusted to them, and take into account the special contributions
the person may make to the family despite, or even because of, the handicap. Marriage of Carney,
supra. See also Marriage of Levin (1980) 102 CA3d 981, 988. Note that Fam C §3049 codifies the
Carney decision.

The court may rely in part on its own observations that the "mother acted in a very abnormal
manner and may be depressed" when awarding custody of children to father. A.G. v C.S. (2016) 246
CA4th 1269, 1287.

On mental illness or handicap, see In re Jamie M. (1982) 134 CA3d 530, 535 (schizophrenia alone not
basis to change custody).

§12.37 H. Race and Ethnicity

Ethnicity or racial prejudice can never be the basis for a child custody determination. Palmore v
Sidoti (1984) 466 US 429, 433, 104 S Ct 1879 (trial court changed custody based on impermissible
conclusion that child's presence in interracial household would create pressures and social
stigmatization).

§12.38 I. Religious and Social Beliefs

Religious beliefs alone cannot disqualify a parent from obtaining custody when there is no
compelling evidence that the parent's religious beliefs and observances would be harmful to a
child. Marriage of Urband (1977) 68 CA3d 796, 798.

Absent a showing of harm to the child from the parent's religious practices, a parent has an
unfettered right to direct child's religious upbringing. Marriage of Weiss (1996) 42 CA4th 106
(noting that United States Supreme Court held in Wisconsin v Yoder (1972) 406 US 205, 230, 92 S Ct
1526, that parental authority on religious upbringing may be encroached on only by showing
substantial threat of harm to physical or mental health of child or to public safety, peace, order, or
welfare); Marriage of Murga (1980) 103 CA3d 498, 504.

In deciding to intervene in a parent's involvement of a child in religious activities, a court must

balance the harm created by parental conduct against the potential harm created by judicial
intervention in the family, and must condition its decision to intervene on a clear affirmative
showing of harm or likely harm, and the exhaustion of mediation. Marriage of Mentry (1983) 142
CA3d 260, 264.

Note also that a written promise in a premarital agreement to raise a child in a particular faith is
unenforceable. Marriage of Weiss (1996) 42 CA4th 106, 117. On drafting premarital agreements, see
California Marital Settlement and Other Family Law Agreements (3d ed Cal CEB).

§12.39 J. Sexual Orientation and Behavior

Legislation effective January 1, 2020 prohibits a court from considering the sex, gender identity,
gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the
best interest of the child. Fam C §§3011(b), 3020(d). See Stats 2019, ch 551.

Historically, a parent's sexual orientation or behavior, alone, was not a relevant factor in
determining the best interest of a child; this premise was accepted by California courts even before
parentage rights of gay and lesbian couples were more broadly recognized in California. See, e.g.,
Marriage of Birdsall (1988) 197 CA3d 1024 (involving visitation with homosexual father).

Even before the enactment of Fam C §297.5(d), which grants registered domestic partners the
same rights and responsibilities with respect to a child of either partner as those conferred on
spouses, a trial court could not deny custody to a parent solely on the basis of homosexuality.
Nadler v Superior Court (1967) 255 CA2d 523. Courts held that a homosexual lifestyle was not a
sufficient reason to restrict visitation unless detriment to the child could also be proved. Marriage
of Birdsall (1988) 197 CA3d 1024; Chaffin v Frye (1975) 45 CA3d 39. But the court was permitted to
consider a parent's homosexuality as a factor along with the other evidence presented. Marriage of
Birdsall (1988) 197 CA3d 1024, 1028. Thus, under Birdsall (citing Chaffin), a parent's unconventional
lifestyle, including a parent's homosexuality, without a link to detriment to the child, was
insufficient to constitute harm. 197 CA3d at 1028.

The enactment of Fam C §§297–299.6 concerning registered domestic partners, and decisions by
the supreme court in 2003 and 2005 on lesbian parenting, reinforced the principle that a parent's
sexual orientation alone should not be a basis for determining the best interest of a child. Elisa B. v
Superior Court (2005) 37 C4th 108; K.M. v E.G. (2005) 37 C4th 130; Kristine H. v Lisa R. (2005) 37
C4th 156; Sharon S. v Superior Court (2003) 31 C4th 417. In addition, recent historic state and federal
decisions have upheld the rights of same-sex couples to marry and have recognized the integrity of
their families. See Hollingsworth v Perry (2013) ___ US ___, 133 S Ct 2652; In re Marriage Cases
(2008) 43 C4th 757 (statutes distinguishing between opposite-sex and same-sex couples and
excluding latter from access to marriage are unconstitutional).

In addition, a court may not, without some compelling reason, restrain a custodial parent from
having overnight visitors of the opposite sex. Marriage of Wellman (1980) 104 CA3d 992.

Furthermore, a parent is not necessarily disqualified from obtaining custody when he or she lives
unmarried with a member of the opposite sex. Marriage of Russo (1971) 21 CA3d 72. Also, a parent's
adultery or abandonment of a marriage "without good cause" is irrelevant because it has no
bearing on whether the parent can provide an appropriate environment in which to raise the
children. Marriage of Slayton & Biggums-Slayton (2001) 86 CA4th 653, 660.

§12.40 K. Wealth of Parents

Neither the relative wealth of the parties, nor the need for one parent to work and place the
children in day care while the other parent is a stay-at-home parent, is a proper basis to award
custody. Burchard v Garay (1986) 42 C3d 531, 539; Marriage of Lloyd (2003) 106 CA4th 754, 759;
Marriage of Fingert (1990) 221 CA3d 1575, 1580.

Note, however, that a court may find that a child's best interest will be promoted when his or her
parent leaves a high-paying, but time-consuming and stressful, job in order to spend additional
time with the child—even though doing so is a potential factor in the court's determination of
whether income should be imputed to that parent. See Marriage of Bardzik (2008) 165 CA4th 1291,
1311 (discussing interplay of "child's best interest" with child support statutes).

§12.41 L. Home Schooling

A court may consider a parent's desire or intention to place the child in home schooling as a factor
in its determination of the best interest of the child, keeping in mind that home schooling may be
appropriate in a particular case. Cassady v Signorelli (1996) 49 CA4th 55, 61 (no abuse of discretion
in trial court's order that child be placed in public school rather than be home schooled by mother).

In addition, note that, although parents have a protected liberty interest in directing their
children's education, they do not have an absolute constitutional right to home-school their
children. Jonathan L. v Superior Court (2008) 165 CA4th 1074, 1101.

§12.42 M. Smoking

Secondhand smoke and its effect on a minor child may be a potential factor to consider in making a
custodial placement, though no reported decision has specifically so held. See generally Fam C
§3011(a)(1). See also Lab C §6404.5 (prohibiting smoking in workplace areas accessible to children,
but excluding private residences).

§12.43 N. Split Custody Disfavored

In general, absent compelling circumstances and unless the best interests of the children require
separating some of them from their siblings, it is an abuse of discretion to separate siblings from
one another in making a custody order. G.M. v J.H. (2014) 228 CA4th 925, 938; Marriage of Williams
(2001) 88 CA4th 808. But see Marriage of Schwartz (1980) 104 CA3d 92, 95 (chastising judge for
refusal to let parents separate sibling custody by agreement).

A child's developmental disability is not a per se compelling circumstance warranting separation.

Marriage of Heath (2004) 122 CA4th 444, 450 (court abused discretion in separating two brothers
based on "hunch" that autistic child's behavior had negative effect on his brother). Marriage of
McKean (2019) 41 CA5th 1083, 1092 (trial court's determination that older child's medical condition
was evidence of compelling circumstances warranting separation of younger children ignored
established precedent that disability is not automatically evidence of compelling circumstances).

On the other hand, if the parents have agreed that one of the siblings should live with one parent
and the other sibling with the other parent, a court may not reject that agreement based on a
preconceived bias. Marriage of Schwartz (1980) 104 CA3d 92.

VIII. CONSIDERATION OF RISK OF ABDUCTION AND PREVENTION OF ABDUCTION

§12.44 A. Required Jurisdictional Findings

Family Code §3048(a) requires a court to make jurisdictional findings, to aid enforcement of
custody orders and to prevent abduction and interstate "forum shopping." Every custody or
visitation order must contain findings of all of the following components (Fam C §3048(a)):

The basis for the court's exercise of jurisdiction;

The manner in which notice and opportunity to be heard were given;

A clear description of the custody and visitation rights of each party;

A provision stating that a violation of the order may subject the party in violation to civil or
criminal penalties, or both; and

Identification of the country of habitual residence of the child or children.

§12.45 B. Prevention of Abduction

Family Code §3048(b) requires a court to determine, either on its own motion or at the request of a
party, whether additional measures are needed to prevent abduction of the child by one of his or
her parents. In making that determination, the court must consider the risk of abduction of the
child, obstacles to location, recovery, and return if the child is abducted, and potential harm to the
child if he or she is abducted.

Family Code §3048(b)(1) lists eight factors that a court is required to consider in its determination
of risk of abduction:

Whether a party has previously taken, enticed away, kept, withheld, or concealed a child in
violation of the right of custody or of visitation of a person;

Whether a party has previously threatened to take, entice away, keep, withhold, or conceal a
child in violation of the right of custody or of visitation of a person;

Whether a party lacks strong ties to California;

 Whether a party has strong familial, emotional, or cultural ties to another state or country,
including foreign citizenship; but this factor may be considered only if evidence exists in
support of another factor specified in Fam C §3048;

Whether a party has no financial reason to stay in California, including whether the party is
unemployed, is able to work anywhere, or is financially independent;

Whether a party has engaged in planning activities that would facilitate the removal of a child
from California, including quitting a job, selling his or her primary residence, terminating a
lease, closing a bank account, liquidating other assets, hiding or destroying documents,
applying for a passport, or applying to obtain a birth certificate or school or medical records,
or purchasing airline or other travel tickets, with consideration given to whether a party is
carrying out a safety plan to flee from domestic violence;

Whether a party has a history of domestic violence, lack of parental cooperation, or child
abuse, or there is substantial evidence that a party has perpetrated domestic violence; and

Whether a party has a criminal record.

If, after considering all of the above factors, the court makes a finding that there is a need for
preventive measures to avoid abduction, the court is required to consider (but not necessarily to
impose) one or more of the following preventive measures. (Fam C §3048(b)(2)):

Ordering supervised visitation;

Requiring a parent to post a bond in an amount sufficient to serve as a financial deterrent to

abduction, the proceeds of which may be used to offset the cost of recovery of the child in the
event there is an abduction (see, e.g., Marriage of Condon (1998) 62 CA4th 533, 562);

Restricting the right of the custodial or noncustodial parent to remove the child from the
county, the state, or the country;

Restricting the right of the custodial parent to relocate with the child, unless the custodial
parent provides advance notice to, and obtains the written agreement of, the noncustodial
parent, or obtains the approval of the court, before relocating with the child;

Requiring the surrender of passports and other travel documents;

Prohibiting a parent from applying for a new or replacement passport for the child;

Requiring a parent to notify a relevant foreign consulate or embassy of passport restrictions

and to provide the court with proof of that notification;

Requiring a party to register a California order in another state as a prerequisite to allowing a

child to travel to that state for visits, or to obtain an order from another country containing
 terms identical to the custody and visitation order issued in the United States (recognizing
that these orders may be modified or enforced under the laws of the other country), as a
prerequisite to allowing a child to travel to that county for visits;

Obtaining assurances that a party will return from foreign visits by requiring the traveling
parent to provide the court or the other parent or guardian with any of the following: the
travel itinerary of the child; copies of round trip airline tickets; a list of addresses and
telephone numbers where the child can be reached at all times; or an open airline ticket for the
left-behind parent in case the child is not returned;

Including provisions in the custody order to facilitate use of the Uniform Child Custody
Jurisdiction and Enforcement Act (UCCJEA), and the Hague Convention on the Civil Aspects
of International Child Abduction, such as identifying California as the home state of the child
or otherwise defining the basis for the California court's exercise of jurisdiction, identifying
the United States as the country of habitual residence of the child under the Hague
Convention, defining custody rights under the Hague Convention, obtaining the express
agreement of the parents that the United States is the country of habitual residence of the
child, or that California or the United States is the most appropriate forum for addressing
custody and visitation orders; and

Authorizing the assistance of law enforcement personnel.

If the court imposes any or all of the conditions listed above, those conditions must be specifically
noted in the minute order of the court proceedings. Fam C §3048(b)(3).

For warnings about the limited effectiveness of any of these orders, see §4.79. For preventive
measures specifically addressing countries that operate under Islamic Shari'a law, see
http://www.expertlaw.com/library/family_law/islamic_custody.html.