If you’re involved in any sort of child custody or visitation case in California, it’s just a matter of time before you encounter the “Best Interest” standard. In other words, the California courts want to do whatever will be in the “best interest” of the minor child or children in question.
In my view view, though, the term “best interest” is tossed around so much that practically-speaking, it’s lost a great deal of its meaning. The vast majority of people involved in a custody and visitation case — lawyers and litigants alike — will no doubt use the term “best interest” but be unable to define what the term actually means. In this post, I’m going to provide you two definitions for the term “best interest”: (1) the formal technical definition from the California Family Code, and (2) a more practical definition which will hopefully be more useful in the real world.
The Formal Definition
Regardless of what you may feel personally, the only definition of “best interest” that ultimately matters is the formal technical one as specified in either California statute, California case law, or both. Discussing the case law is going to make this blog post way, way, way, way too long so I’m going to be limited to the statute only, namely Section 3011 of the California Family Code. That section says as follows:
“(a) In making a determination of the best interests of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant and consistent with Section 3020, consider all of the following:
(1) The health, safety, and welfare of the child.
(2) (A) A history of abuse by one parent or any other person seeking custody against any of the following:
(i) A child to whom the parent or person seeking custody is related by blood or affinity or with whom the parent or person seeking custody has had a caretaking relationship, no matter how temporary.
(ii) The other parent.
(iii) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
(B) As a prerequisite to considering allegations of abuse, the court may require independent corroboration, including, but 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. As used in this paragraph, “abuse against a child” means “child abuse and neglect” as defined in Section 11165.6 of the Penal Code and abuse against any other person described in clause (ii) or (iii) of subparagraph (A) means “abuse” as defined in Section 6203.
(3) The nature and amount of contact with both parents, except as provided in Section 3046.
(4) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this paragraph, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act (Division 10 (commencing with Section 11000) of the Health and Safety Code).
(5) (A) When allegations about a parent pursuant to paragraph (2) or (4) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody or unsupervised visitation to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323.
(B) This paragraph does not apply if the parties stipulate in writing or on the record regarding custody or visitation.
(b) 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.”
As you can hopefully see, there is no concise definition of what “best interest” is and is not. Instead, Section 3011 simply lists out what criteria or facts a Family Court in California shall look at to determine what is and is not in a particular child’s “best interest”. These are the parts I’ve bolded and underlined above, namely:
- The child’s “health, safety, and welfare”,
- History of abuse by the parent seeking custody against the child themselves, the child’s other parent, or any other person within a dating or engagement relationship,
- The nature and amount of contact the child has with both parents,
- Habitual or continual illegal use of alcohol or controlled substances.
- By law, gender, gender identity, gender expression, and sexual orientation cannot be considered. Thus, a parent being transgender or gay or lesbian is irrelevant.
Some of these criteria are more clear than others (e.g. the use of illegal drugs versus not), but there is still a considerable amount of gray area also. For instance, when it comes to illegal drugs, the mere usage is technically not enough. The usage has to be “habitual or continual” in order to even be considered in the “best interest” analysis. What qualifies as “habitual or continual”? I have no idea.
Gray areas like this are, I think, what makes this formal technical definition not very useful for the average person. That’s why I’m also providing what I think is a more practically-useful definition.
The More Practically-Useful Definition
Before I describe it, I want to emphasize that this definition is based on my own opinion and phrases the “best interest” standard in a way that makes sense to me personally. I can’t guarantee that it will make sense to you or for the circumstances of your specific case. As always, you have to use your own judgment.
Having said that, then this is hopefully a more practical way to think about what is and is not in “the best interest” of a child: Let’s suppose that your child is 5 years old or so right now. If so, fast forward 25 years into the future and imagine that you’re meeting your now 30-ish year old child. How would you describe them?
I would hope that all of us, regardless of culture, politics, education, etc., would want to be able to describe our adult child positively. For instance, that they are in good health and have their own home and family along with a good job that makes them happy and fulfilled. I’d guess most of us would not be as happy if our adult child was (1) constantly getting fired from their job, (2) had chronic physical or mental health issues, or (3) are constantly in trouble with the law.
I would wager that no parent anywhere would, for instance, want their daughter being beaten up by a new boyfriend each and every week.
If you’re following me so far, then I’d propose that a more practical way to think of “best interest” is as follows:
“What actions and choices can be made today to make it so that the 5 year-old of today turns into the healthy, happy, successful, and fulfilled 30 year-old I described?”
To be fair, of course, thinking of it this way does not actually reveal what to do now to get the “healthy, happy, successful, fulfilled” outcome later. As with many things in life, there is no recipe or formula you can follow. However, I’m hoping that the “healthy, happy, successful, fulfilled” idea is going to speak to a lot more people than the formal technical definition in Section 3011.
As always, I hope this post helped. As a reminder, Section 3011 that I mentioned above only applies in California. You would have to check if your state or country had an analogous law. The “More Practically-Useful Definition”, though, is something that I think would apply everywhere.
Andy Chen
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