Every parent has an equal right to the custody of the child even after separation. Courts usually award joint custody if both parents can adequately perform their duties as parents. In California, custody laws require that custody orders ensure the children have frequent contact with both parents and to share in the rights and responsibilities of raising the child.
Whenever there is a contest about the custody of a child, the judges evaluate the cases and consider the best interests of the children before ruling how parents will share time with the children. In determining a child’s best interests, California law (Fam. 3400, 3000, et seq.) specifies two guiding policies;
- The health and welfare of children must be a court’s primary concern.
- Children should benefit from frequent and continuing contact with both parents.
The court must also take into account all the factors and circumstances before making a decision. These factors include;
- Child’s health and safety – The court may not grant custody or unsupervised visitations to a parent who has committed first-degree murder of the child’s other parent or has been convicted of certain types of physical or sexual child abuse
- Child’s preference – A child who is mature enough to make an intelligent choice regarding custody may be granted his/her wishes by the court.
- Co-parenting skills – The court may grant custody to a parent more likely to encourage a positive relationship, including frequent and continuing contact, between the child and the other parent.
- Continuity and stability – The courts usually try to maintain stability and continuity in a child’s environment including maintaining established patterns of care and emotional bonds with the primary caretaker and siblings.
- Custody options – California law favors joint physical and legal custody when both parents agree to it. Physical custody refers to the child’s physical presence with a parent, while legal custody refers to a parent’s authority to participate in major decisions affecting a child’s health, education, and welfare.
However, the court has the discretion to award guardianship to a third party if it determines that giving custody to either of the child’s parents would somehow be harmful to the child, either emotionally or physically. In such a case, a relative or anyone who would want to be the child’s custody must file for custody based on the fact that the parents cannot care for the child. The court may grant the guardian both physical and legal custody of the child.