Deciding who gets the kids in a child custody battle is no easy feat. Judges don’t simply toss a coin or render arbitrary decisions. In fact, California law requires judges to make decisions that are in the child’s best interests based on certain factors. Let’s look at some of the things family court judges consider before finalizing custody arrangements.
But, first, let’s look at the types of custody available:
- Legal custody – A parent with legal custody of a child makes important decisions about their “health, education, and welfare.”
- Physical custody – Children live with or spend more time with a parent who has physical custody.
Either type of custody can be joint (shared by both parents) or sole (held by one parent). For example, a couple could have joint legal custody while only one parent has physical custody. This means that the child might live with one parent most of the time, but both parents share in decision-making.
#1. The Kid’s Age and Maturity Matter
Judges will note a child’s age before granting custody. Staying with one parent over another might make more sense at certain stages of a child’s growth.
In the past, something called the “tender years doctrine” applied, which meant that mothers were almost always awarded custody of very young children. Under California law, judges are not to consider gender when deciding who gets the kids, no matter how old they are.
#2. Judges Consider the Children’s Health
Some children might have special needs or serious medical conditions. Judges generally consider which parent is best able to care for the child in situations like this. For example, a father might have physical custody because the mom travels extensively for her job.
#3. Bonds with Each Parent Play a Part in Who Gets the Kids
Ideally, both parents will bond well with their children. Realistically, children might form a stronger relationship with one parent. If so, breaking that bond could be detrimental to the child or not in the child’s best interests. Judges might consider evidence that a child is closer to one parent before awarding custody.
#4. Judges Consider Each Person’s Parenting Abilities
Parents often vary significantly in their ability to handle raising children. After all, it can be one of the most stressful (and also joyful) life experiences. Family court judges tasked with deciding custody might look for evidence that one parent is more suitable than the other.
#5. Acts of Domestic Violence Necessarily Sway a Judge’s Decision
As mentioned above, California family court judges make decisions based on what is in the child’s best interests. When domestic violence is present, children are at risk even if they are not physically injured. In these situations, judges consider their options very seriously before deciding who gets the kids.
#6. Alcohol and Substance Abuse Matter Also When Deciding Who Gets the Kids
Domestic violence often goes hand-in-hand with alcohol and substance abuse. Here, again, children are at risk when parents suffer from addictions. Getting help is essential, but judges have to consider the risk when assigning custody.
#7. Finally, Judges Consider the Child’s Ties to Home, School, and Community
Divorce is hard enough on children. But the risks of emotional damage become even more harmful when kids are forced to leave their friends, schools, extracurricular activities, and religious institutions. Family court judges consider these issues carefully, along with the others mentioned above, before making custody decisions.
About the Author
Judy Burger is a California Certified Family Law Specialist and founder of the Law Offices of Judy L. Burger. She is a passionate advocate for her clients and is known for her aggressive, “outside of the box” representation.
The attorneys at the Law Offices of Judy L. Burger are experienced at all phases of divorce, legal separation, and annulment. Call us at 415-293-8314 to schedule a private appointment or visit our website. We assist clients along California’s Northern to Southern Coast, including San Francisco, Beverly Hills, Marin, San Jose, Gold River, San Diego, Santa Barbara, Ventura/Oxnard, and surrounding communities.