Law Office of Stephen W. Penn and Associates

CHILDREN SHOULD ALWAYS COME FIRST IN CUSTODY DECISIONS

Whether you and your spouse reach an agreement on child custody or a court must decide the custody arrangement, your child's best interests should be the main consideration in the type of arrangement that is chosen. As parents, you and your spouse are probably the two people who understand your child's needs better than anyone else. However, it can be difficult to work together with a spouse during divorce, and some divorcing couples are unable to agree on an arrangement that best meets their child's needs.

When a family law court must decide a child custody arrangement, it's decision must be based on the best interests of the child. However, many parents wonder how the courts can determine a child's best interests when even the child's parents cannot agree on what that is.

Factors that can help discern a child's best interests

Although courts do not have an exact formula to determine a child's best interests, there are several guidelines for factors the court should consider. First and foremost, the health, safety and welfare of the child are the court's primary concerns.

A court can consider any relevant factor when determining a child's best interests, but some typical considerations include:

  • How likely it is for each parent to allow the child to maintain a relationship with the other parent
  • The child's wishes, if he or she is mature enough to intelligently weigh the options
  • A parent's continued use of illegal drugs or continued alcohol abuse
  • Any history of domestic violence
  • The amount of contact each parent has had with the child

Factors that courts will not consider

Unless there is a reason to believe otherwise, the court often assumes it is in a child's best interest to have frequent contact with both parents, and courts often encourage parents to share the responsibilities associated with the child's care. However, that does not necessarily mean the court will assume joint custody is best for a child.

The court will also not assume that a child should stay with a mother or a father because of the parent's sex. Also, if one parent relocates from the marital home, that absence will not be a factor in determining child custody as long as the absence is for a short time or was in response to domestic violence or threats of domestic violence.

If you and your spouse are working together to establish a custody arrangement, it is important to determine the arrangement that would benefit your child the most. You and your spouse may have different ideas of your child's best interests, so it can be helpful to consider how your child's best interests would be determined legally. This understanding may also help you advocate for your child's interests if a court must ultimately decide what child custody arrangement to award.

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  • SCBA | Santa Clara County Bar Association | EST 1917
  • State Bar Of California | California Board Of Legal Specialization | Stephen W. Penn
  • Henry P. Collada Memorial Award 2012