What Judges Consider in Custody Decisions

When a child’s parents separate, a parenting plan is necessary to determine how much time each parent will spend with the child, how decisions will be made on their behalf, and where the child will reside. A parenting plan may be strictly scheduled or open-ended, depending on how well the parents are able to communicate with one another and what is in the best interest of the child. 

At Pinkham & Associates, our goal is to work with parents to create a parenting plan that is mutually acceptable to both parents. Above all, we want to ensure that the parenting plan the judge orders is in the best possible interest of the children involved. 

Key Factors Judges Evaluate in Custody Decisions

When two parents separate, their respective attorneys will work together to create a parenting plan. If a mutually acceptable agreement cannot be made, a judge may decide what is in the best interest of the children involved. There are numerous factors a judge must consider when making the determinations necessary to foster these plans. 

The Child’s Health, Safety, and Welfare

Suppose a history of abuse, neglect, or parental substance abuse has been documented. In that case, a judge will need to consider this when determining where the child should live, whether or not one or both parents should have visitation rights, and whether or not they should be supervised. 

The Child’s Stability and Routine

A judge has the responsibility to ensure that a child’s routine is as little disturbed by their parents’ separation as possible. With this consideration, a judge will determine how best to protect a child’s relationships with their peers, their education, and their relationship with their primary caregiver. For instance, if one parent moves out of the primary residence and relocates several hours away, it may be in the child’s best interest to reside primarily with the parents that stays in the original family home so that the child can continue to go to the same school, participate in the same activities, and nurture existing friendships. 

How the Parents Co-Parent and Communicate with Each Other

A parenting agreement can be scheduled or open-ended. A scheduled agreement will dictate which parent will have custody of the children at specific times and on specific days. 

An open-ended agreement allows parents to decide between themselves who will have the children and when. Open-ended agreements require a high level of effective communication and mutual respect between both parents. 

Parental Physical and Mental Health

The health and mental stability of both parents play a role in the parenting agreement. If one parent is not physically or mentally able to care for the children, they may require supervised visitation. 

The Child’s Preference

Lastly, children who are over age 14 can render an opinion about how much time they’d like to spend with each parent and where they’d like to live. A judge will consider their preference when determining the final parenting agreement. 

Until you have a court-ordered parenting agreement, both parents have equal rights to their children. 

Additional Factors a Judge Will Consider in a California Custody Case

Some cases have special factors that a judge will also need to consider when deciding on a custody agreement. 

• Siblings. If the child has siblings who are present in the home, the judge will make every effort to keep the siblings together if it is in their best interests. 
• Cultural, religious, and community ties. The judge must consider all facets of a child’s life, including their culture, their religious affiliation, and their community. Separating a child from their community could cause a hardship to a child, and is usually avoided if at all possible.
• Geographic stability. Some custody cases involve two parents who live far apart. It is usually in the best interest of the child to keep them in the place where they have lived the longest, unless there is a history of abuse or neglect. 

There are numerous facets to deciding a custody case, and the judge has the responsibility to consider all of them and ensure the final decision they make is the one that best supports the health and welfare of your children. 

Legal Custody vs. Physical Custody in California

Two types of custody exist for parents: legal custody and physical custody. 

• Legal custody. A parent who has legal custody has the ability to make legal decisions about their child. These include decisions as to their child’s healthcare, education, relocation, and mental health. 
• Physical custody. Physical custody refers to where a child will live and which parent will take care of them on a daily basis. 

Both legal and physical custody can be joint (both parents have this custody) or sole (only one parent his this custody). 

Types of Decisions in California Custody Cases

Divorce is not the only time that a judge may have to decide on a parenting plan or custody. There are several different types of custody court proceedings. 

• Divorce and separation. When two parents separate, both legal and physical custody of the children must be decided, usually with a detailed parenting plan in place. 
• Paternity. Paternity cases determine the father of a child. If a child has been raised solely by their mother, and paternity establishes who their father is, a custody case may ensue. 
• Modification proceedings. A modification to an existing custody agreement is possible. This may be necessary if one parent relocates to another state or becomes physically and/or mentally incapable of caring for their child. 

The court may also step in and modify a custody agreement or eliminate custody if abuse or neglect is suspected. 

The “Best Interest of the Child” Standard

Determining the best interest of the child requires a review of a child’s current living situation, their overall health and wellness, and their ability to maintain close contact with both parents.  California Family Code Section 3011 outlines the factors that are used to determine the best interest of the child, and how a judge incorporates these factors into their decision. 

When Can a Legal Custody Decision Be Modified in California?

In California, a modification to an existing custody agreement may be made for several reasons:

• One parent experiences a change in circumstances. If a parent moves, has a change in their physical or mental health, or if a child’s health needs change, a modification may be needed to address these changes. 
• Child’s preference. If a custody agreement was made prior to a child being 14 years of age, the child may wish to stay with a different parent when they are older. 
• Continued disagreements between parents. A modification may be necessary if the parents cannot agree to the terms of a more open-ended agreement. 
• The child’s safety is in jeopardy. If the child’s safety is in jeopardy, a modification can eliminate the risk for the child. 

If a modification to an existing order is needed, a qualified family law attorney can help you address your concerns and petition the court for an order. 

Can You Appeal a Custody Decision in California?

If you are dissatisfied with a custody decision, you have the right to appeal. An experienced family lawyer can help you file an appeal and fight for your paternal rights. At Pinkham & Associates, our team of attorneys is compassionate and well-versed in California custody law. We can help you file an appeal and protect your rights. 

Talk to a California Family Law Attorney for Help Filing for Custody in California

Your children are the most important people in your life, and we will fight for your right to protect them at all costs. Contact us today to talk to us about your current custody agreement, or to get help establishing a new one. Our primary goal is to communicate with all parties involved to come to a resolution that is best for your children and you.