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Understanding the concept of “best interests of the child”

On Behalf of | Sep 16, 2021 | Child Custody

The phrase “best interests of the child” is a phrase often heard during the course of a California divorce involving minor children. California laws make “the best interests of the child” the predominant factor in determining who should have physical custody of the children, the amount of child support that one parent will owe to the other after the divorce decree becomes final, and whether and to what extent a post decree motion to amend the decree should be granted.

The California statutes state a very broad policy regarding the welfare of children involved in a contested divorce: “the health, safety, and welfare” of children shall be the “court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children.” In addition to this broad statement of policy, the legislature has added a list of specific factors that the court should consider in addition “any other factors it finds relevant.” Familiarity with the items on this list is the key to understanding what is meant by “best interests of the child.”

Specific considerations

The first item on the list is “The health, safety, and welfare of the child.” That factor by itself is sufficient to allow a judge great latitude in evaluating the best interests of the child. Other factors are more specific. The second factor on the list is “a history of abuse by one parent or any other person seeking custody in opposition to a parent, current spouse or any of the other persons enumerated in the statute. Before it considers allegations of abuse, the court may ask for corroboration from social welfare agencies, courts or other public agencies. The next is the nature and amount of contact the child has with each parent. An especially negative factor that can prejudice the attempt by one parent to obtain exclusive physical custody is a history of habitual or continual illegal use of controlled substances. Again, the court may require independent corroboration from a qualified professional.

The list of factors contains one specific contains one item that the court may NOT consider: “Notwithstanding subdivision (a), the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.”

Anyone who is the parent of a minor child and is considering a divorce may wish to consult a knowledgeable child custody lawyer for an evaluation of the evidence and the recommendation of whether and which child care professional should be retained as an expert witness.