“Best Interests of The Child”: What Does That Actually Mean?
In California, family courts have broad discretion when making orders regarding custody and visitation to ensure those orders align with the “best interests of the child.”
The California courts have this authority because the California Family Code explicitly explains that it is the public policy of the State of California to do ensure the following:
A. “... [T]he 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 … [C]hildren have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.” [1]
B. “... [C]hildren have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child …” [2]
C. “When the policies set forth in subdivisions (a) and (b) of this section are in conflict, a court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.” [3]
D. “... [T]he sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative is not considered in determining the best interests of the child.” [4]
How do the courts apply this in custody and visitation cases?
In addition to the relevant facts presented by the parties, the court is required to consider the “best interests of the child” when making orders regarding custody and/or visitation. California Family Code section 3011 spells out what the court shall and shall not consider as relevant factors for this purpose.
California Family Code section 3011 states, “[i]n making a determination of the best interests of the child in a [dissolution or parentage case], the court shall … consider all of the following:”
The health, safety, and welfare of the child;
History of abuse;
The nature and amount of contact with both parents;
Use of controlled substances by either parent; and
Any other factors the court finds relevant. [5]
California Family Code section 3011 also explicitly explains that the court shall not consider the following factors in determining the best interests of the child – the parent, legal guardian, or relative’s:
Sex;
Gender identity;
Gender expression; or
Sexual orientation. [6]
We’re their parents, shouldn’t we be deciding what is in our child(ren)’s best interest? Not the court?
YES - in most cases, yes.
Certainly you can imagine extreme scenarios where it is absolutely necessary for the court to intervene to protect a child’s best interests. There are unfathomable situations that some children are placed where their parents are incapable or unwilling to protect their best interests. Those situations are why these statues are imperative.
If, however, your family is not facing such dire circumstances, and both parents are willing and able to put their child(ren)’s best interests at the forefront, then there is no need to divest your parental decision making to the court.
Can Mediation help us make a parenting plan with our child(ren)’s best interests at heart?
YES - Mediation is the perfect solution for parents who are separating but want to ensure their child(ren)’s well being continues to be a primary focus of their family.
Mediation allows you and your spouse (or co-parent) the time and flexibility, in a lower stress environment, to best design a custody and visitation schedule that works for your family. Your mediator will guide you through the laws surrounding custody and visitation and provide you an opportunity to consult with independent legal counsel as needed. Mediation can reduce the pressure and stress of custody and visitation agreements by giving you more control.
Lea M. Nemeth, PC is dedicated to helping you achieve the best possible outcome for your particular circumstance. Book a Consultation today to learn more about how Mediation can benefit you and your loved ones.
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Footnotes
[1] See California Family Code § 3020(a) (emphasis added)
[2] See California Family Code § 3020(b) (emphasis added)
[3] See California Family Code § 3020(c)
[4] See California Family Code § 3020(d) (emphasis added)
[5] See California Family Code § 3011(a) (emphasis added)
[6] See California Family Code § 3011(b) (emphasis added)
