If you’re involved in a child custody or visitation case, there’s a good chance you’ve encountered the term “best interests of the child.” As a general rule, when there are minor children involved in a California family law case, courts will try their best to come up with a custody and visitation arrangement that is in the best interests of the child. The phrase “best interests” is tossed around a great deal, though, without much definition or specificity. In this post, I’m going to try and change that by, as should be no surprise, going over a California statute. I’ll toss in a little common sense at the end also.
When it comes to statutes, there’s two-levels of analysis. First, the statute — Section 3011 of California’s Family Code, if you want to look it up — does contain a list of factors that courts can consider when trying to determine what is and is not in a child’s best interest. The second-level, though, is that this list is not exhaustive. In other words, the court can also consider factors other than what the statute explicitly lists.
The list in Section 3011 says:
- The “health, safety, and welfare of the child”;
- Whatever history of abuse exists, if any, that is perpetrated by the party seeking custody now; (
- The “nature and amount of contact with both parents”; (If this is your situation, you need to read the text of Section 3011 as well as that of Section 3046 because a lot of exceptions apply).
- The “habitual or continual illegal use of controlled substances,” abuse of alcohol, or misuse of prescribed controlled substances by either parent.
The court can consider these 4 factors when determining what is in a minor child’s best interests. As I said before, though, this list is not exhaustive. The beginning of Section 3011 states that the court “shall, among any other factors it finds relevant and consistent with Section 3020, consider all of the following:” As usual, I’ve bolded and underlined the part of the statute that I think is important.
Usual disclaimer, of course. If you’ve read any of my other posts (which, if you have, I thank you), then you’ll have seen this there also because I say it a lot: If you do have a child custody/visitation case and you’re trying to prove that what you want is in your child’s best interest, you need to read the precise language of what Sections 3011, 3020, etc. all say in order to determine what applies to you. What I’ve written above is just me paraphrasing Section 3011 so that it’s easier to discuss and work with in the context of a blog post. Using a statute in a court case is, obviously, much more technical.
Of note as well is Section 3011(b), which states:
“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.”
If you’re using Section 3011, you might then also wonder “Well, Andy, what other factors would a court find relevant?” Even if you don’t know what the precise legal rules, cases, statutes, etc. say about custody and visitation (e.g. you are handling your case on your own), I think applying a small amount of common sense means you can still answer this question.
If I do that, what common sense tells me is that there are some common aspirations, goals, hopes, etc. that all parents everywhere have for their children. A couple of obvious things should come to mind, such as happiness, good health, and financial success. Certain desirable characteristics should also come to mind. For example, I’d argue that all parents want their child to grow up into an adult who is happy, responsible, generous, and respectful. No parent wants their child to live a life where they suffer. No parent wants their child to grow up into a person the world can do without.
Thus, if the goal is to have this child grow up into an adult that can be described with all sorts of positive adjectives (e.g. happy, responsible, etc.), I would say that any facts that would help the child of the present actually grow up into such an adult would be relevant.
How do you do that? What do you actually say? Unfortunately, as with many things in the law, there is no formula or recipe of what to do in order to show, for example, that the best interests of the child means that you should have primary custody. It all depends on the facts of the situation.
Lastly, standard plug: If you do have a situation where you’re trying to prove or articulate what is in the “best interests” of your child, I’d recommend finding a lawyer in your area with whom you can discuss the details of your case.
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