of Minor Children
to Custody of Minor Child
2. Matters to be Considered in Granting Custody
Family Code, sections 3040-3048
(a) Custody should be granted in the following
order of preference according to the best interest
of the child as provided in Sections
3011 and 3020:
To both parents jointly pursuant to Chapter 4
(commencing with Section
3080) or to either parent. In making an order
granting custody to either parent, the court shall
consider, among other factors, which parent is
more likely to allow the child frequent and continuing
contact with the noncustodial parent, consistent
3011 and 3020,
and shall not prefer a parent as custodian because
of that parent's sex. The court, in its discretion,
may require the parents to submit to the court
a plan for the implementation of the custody order.
If to neither parent, to the person or persons
in whose home the child has been living in a wholesome
and stable environment.
To any other person or persons deemed by the court
to be suitable and able to provide adequate and
proper care and guidance for the child.
This section establishes neither a preference
nor a presumption for or against joint legal custody,
joint physical custody, or sole custody, but allows
the court and the family the widest discretion
to choose a parenting plan that is in the best
interest of the child.
(a) Before making an order granting custody to
a person or persons other than a parent, over
the objection of a parent, the court shall make
a finding that granting custody to a parent would
be detrimental to the child and that granting
custody to the nonparent is required to serve
the best interest of the child. Allegations that
parental custody would be detrimental to the child,
other than a statement of that ultimate fact,
shall not appear in the pleadings.
The court may, in its discretion, exclude the
public from the hearing on this issue.
Subject to subdivision (d),
a finding that parental custody would be detrimental
to the child shall be supported by clear and convincing
As used in this section, "detriment
to the child" includes the harm
of removal from a stable placement of a child
with a person who has assumed, on a day-to-day
basis, the role of his or her parent, fulfilling
both the child's physical needs and the child's
psychological needs for care and affection, and
who has assumed that role for a substantial period
of time. A finding of detriment does not require
any finding of unfitness of the parents.
(b), if the court finds by a preponderance
of the evidence that the person to whom custody
may be given is a person described in subdivision
(c), this finding shall constitute a finding
that the custody is in the best interest of the
child and that parental custody would be detrimental
to the child absent a showing by a preponderance
of the evidence to the contrary.
(a) In any custody or visitation proceeding brought
under this part, as described in Section
3021, or any guardianship proceeding brought
under the Probate Code, the court may order any
person who is seeking custody of, or visitation
with, a child who is the subject of the proceeding
to undergo testing for the illegal use of controlled
substances and the use of alcohol if there is
a judicial determination based upon a preponderance
of evidence that there is the habitual, frequent,
or continual illegal use of controlled substances
or the habitual or continual abuse of alcohol
by the parent, legal custodian, person seeking
guardianship, or person seeking visitation in
a guardianship. This evidence may include, but
may not be limited to, a conviction within the
last five years for the illegal use or possession
of a controlled substance.
court shall order the least intrusive method of
testing for the illegal use of controlled substances
or the habitual or continual abuse of alcohol
by either or both parents, the legal custodian
person seeking guardianship, or person seeking
visitation in a guardianship. If substance abuse
testing is ordered by the court, the testing shall
be performed in conformance with procedures and
standards established by the United States Department
of Health and Human Services for drug testing
of federal employees. The parent, legal custodian,
person seeking guardianship, or person seeking
visitation in a guardianship who has undergone
drug testing shall have the right to a hearing,
if requested, to challenge a positive test result.
A positive test result, even if challenged and
upheld, shall not, by itself, constitute grounds
for an adverse custody or guardianship decision.
Determining the best interests of the child requires
weighing all relevant factors. The court shall
also consider any reports provided to the court
pursuant to the Probate Code. The results of this
testing shall be confidential, shall be maintained
as a sealed record in the court file, and may
not be released to any person except the court,
the parties, their attorneys, the Judicial Council
(until completion of its authorized study of the
testing process) and any person to whom the court
expressly grants access by written order made
with prior notice to all parties. Any person who
has access to the test results may not disseminate
copies or disclose information about the test
results to any person other than a person who
is authorized to receive the test results pursuant
to this section. Any breach of the confidentiality
of the test results shall be punishable by civil
sanctions not to exceed two thousand five hundred
dollars ($2,500). The results of the testing may
not be used for any purpose, including any criminal,
civil, or administrative proceeding, except to
assist the court in determining, for purposes
of the proceeding, the best interest of the child
pursuant to Section
3011, and the content of the order or judgment
determining custody or visitation. The court may
order either party, or both parties, to pay the
costs of the drug or alcohol testing ordered pursuant
to this section. As used in this section, "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.
(b) This section shall remain in effect only until
January 1, 2008, and as of that date is repealed,
unless a later enacted statute, that is enacted
before January 1, 2008, deletes or extends that
(a) If a child is of sufficient age and capacity
to reason so as to form an intelligent preference
as to custody, the court shall consider and give
due weight to the wishes of the child in making
an order granting or modifying custody.
(b) In addition to the requirements of subdivision
(b) of Section
765 of the Evidence Code, the court shall
control the examination of the child witness so
as to protect the best interests of the child.
The court may preclude the calling of the child
as a witness where the best interests of the child
so dictate and may provide alternative means of
obtaining information regarding the child's preferences.
In determining the person or persons to whom custody
should be granted under paragraph (2) or (3) of
subdivision (a) of Section
3040, the court shall consider and give due
weight to the nomination of a guardian of the
person of the child by a parent under Article
1 (commencing with Section
1500) of Chapter 1 of Part 2 of Division 4
of the Probate Code.
(a) Upon a finding by the court that a party seeking
custody of a child has perpetrated domestic violence
against the other party seeking custody of the
child or against the child or the child's siblings
within the previous five years, there is a rebuttable
presumption that an award of sole or joint physical
or legal custody of a child to a person who has
perpetrated domestic violence is detrimental to
the best interest of the child, pursuant to Section
3011. This presumption may only be rebutted
by a preponderance of the evidence.
In determining whether the presumption set forth
in subdivision (a) has been
overcome, the court shall consider all of the
(1) Whether the perpetrator of domestic violence
has demonstrated that giving sole or joint physical
or legal custody of a child to the perpetrator
is in the best interest of the child. In determining
the best interest of the child, the preference
for frequent and continuing contact with both
parents, as set forth in subdivision (b) of Section
3020, or with the noncustodial parent, as
set forth in paragraph (1) of subdivision (a)
of Section 3040, may not
be used to rebut the presumption, in whole or
(2) Whether the perpetrator has successfully completed
a batterer's treatment program that meets the
criteria outlined in subdivision (c) of Section
1203.097 of the Penal Code.
(3) Whether the perpetrator has successfully completed
a program of alcohol or drug abuse counseling
if the court determines that counseling is appropriate.
(4) Whether the perpetrator has successfully completed
a parenting class if the court determines the
class to be appropriate.
(5) Whether the perpetrator is on probation or
parole, and whether he or she has complied with
the terms and conditions of probation or parole.
(6) Whether the perpetrator is restrained by a
protective order or restraining order, and whether
he or she has complied with its terms and conditions.
(7) Whether the perpetrator of domestic violence
has committed any further acts of domestic violence.
For purposes of this section, a person has "perpetrated
domestic violence" when he or she is found
by the court to have intentionally or recklessly
caused or attempted to cause bodily injury, or
sexual assault, or to have placed a person in
reasonable apprehension of imminent serious bodily
injury to that person or to another, or to have
engaged in any behavior involving, but not limited
to, threatening, striking, harassing, destroying
personal property or disturbing the peace of another,
for which a court may issue an ex parte order
pursuant to Section
6320 to protect the other party seeking custody
of the child or to protect the child and the child's
(1) For purposes of this section, the requirement
of a finding by the court shall be satisfied by,
among other things, and not limited to, evidence
that a party seeking custody has been convicted
within the previous five years, after a trial
or a plea of guilty or no contest, of any crime
against the other party that comes within the
definition of domestic violence contained in Section
6211 and of abuse contained in Section
6203, including, but not limited to, a crime
described in subdivision (e) of Section
243 of, or Section 261,
of, the Penal Code.
(2) The requirement of a finding by the court
shall also be satisfied if any court, whether
that court hears or has heard the child custody
proceedings or not, has made a finding pursuant
to subdivision (a) based
on conduct occurring within the previous five
When a court makes a finding that a party has
perpetrated domestic violence, the court may not
base its findings solely on conclusions reached
by a child custody evaluator or on the recommendation
of the Family Court Services staff, but shall
consider any relevant, admissible evidence submitted
by the parties.
In any custody or restraining order proceeding
in which a party has alleged that the other party
has perpetrated domestic violence in accordance
with the terms of this section, the court shall
inform the parties of the existence of this section
and shall give them a copy of this section prior
to any custody mediation in the case.
(a) If a party is absent or relocates from the
family residence, the court shall not consider
the absence or relocation as a factor in determining
custody or visitation in either of the following
(1) The absence or relocation is of short duration
and the court finds that, during the period of
absence or relocation, the party has demonstrated
an interest in maintaining custody or visitation,
the party maintains, or makes reasonable efforts
to maintain, regular contact with the child, and
the party's behavior demonstrates no intent to
abandon the child.
(2) The party is absent or relocates because of
an act or acts of actual or threatened domestic
or family violence by the other party.
(b) The court may consider attempts by one party
to interfere with the other party's regular contact
with the child in determining if the party has
satisfied the requirements of subdivision
(c) This section does not apply to the following:
(1) A party against whom a protective or restraining
order has been issued excluding the party from
the dwelling of the other party or the child,
or otherwise enjoining the party from assault
or harrassment against the other party or the
child, including, but not limited to, orders issued
under Part 4 (commencing with
Section 6300) of Division 10, orders preventing
civil harassment or workplace violence issued
pursuant to Section 527.6
of the Code of Civil Procedure, and criminal protective
orders issued pursuant to Section
136.2 of the Penal Code.
A party who abandons a child as provided in Section
A party's absence, relocation, or failure to comply
with custody and visitation orders shall not,
by itself, be sufficient to justify a modification
of a custody or visitation order if the reason
for the absence, relocation, or failure to comply
is the party's activation to military service
and deployment out of state.
(a) Notwithstanding any other provision of law,
in any proceeding to determine child custody or
visitation with a child, every custody or visitation
order shall contain all of the following:
(1) The basis for the court's exercise of jurisdiction.
(2) The manner in which notice and opportunity
to be heard were given.
(3) A clear description of the custody and visitation
rights of each party.
(4) A provision stating that a violation of the
order may subject the party in violation to civil
or criminal penalties, or both.
Identification of the country of habitual residence
of the child or children.
(1) In cases in which the court becomes aware
of facts which may indicate that there is a risk
of abduction of a child, the court shall, either
on its own motion or at the request of a party,
determine whether measures are needed to prevent
the abduction of the child by one parent. To make
that determination, the court shall consider the
risk of abduction of the child, obstacles to location,
recovery, and return if the child is abducted,
and potential harm to the child if he or she is
abducted. To determine whether there is a risk
of abduction, the court shall consider the following
Whether a party has previously taken, enticed
away, kept, withheld, or concealed a child in
violation of the right of custody or of visitation
of a person.
Whether a party has previously threatened to take,
entice away, keep, withhold, or conceal a child
in violation of the right of custody or of visitation
of a person.
Whether a party lacks strong ties to this state.
Whether a party has strong familial, emotional,
or cultural ties to another state or country,
including foreign citizenship. This factor shall
be considered only if evidence exists in support
of another factor specified in this section.
Whether a party has no financial reason to stay
in this state, including whether the party is
unemployed, is able to work anywhere, or is financially
Whether a party has engaged in planning activities
that would facilitate the removal of a child from
the state, including quitting a job, selling his
or her primary residence, terminating a lease,
closing a bank account, liquidating other assets,
hiding or destroying documents, applying for a
passport, applying to obtain a birth certificate
or school or medical records, or purchasing airplane
or other travel tickets, with consideration given
to whether a party is carrying out a safety plan
to flee from domestic violence.
Whether a party has a history of a lack of parental
cooperation or child abuse, or there is substantiated
evidence that a party has perpetrated domestic
Whether a party has a criminal record.
If the court makes a finding that there is a need
for preventative measures after considering the
factors listed in paragraph
(1), the court shall consider taking one or
more of the following measures to prevent the
abduction of the child:
Ordering supervised visitation.
Requiring a parent to post a bond in an amount
sufficient to serve as a financial deterrent to
abduction, the proceeds of which may be used to
offset the cost of recovery of the child in the
event there is an abduction.
Restricting the right of the custodial or noncustodial
parent to remove the child from the county, the
state, or the country.
Restricting the right of the custodial parent
to relocate with the child, unless the custodial
parent provides advance notice to, and obtains
the written agreement of, the noncustodial parent,
or obtains the approval of the court, before relocating
with the child.
Requiring the surrender of passports and other
Prohibiting a parent from applying for a new or
replacement passport for the child.
Requiring a parent to notify a relevant foreign
consulate or embassy of passport restrictions
and to provide the court with proof of that notification.
Requiring a party to register a California order
in another state as a prerequisite to allowing
a child to travel to that state for visits, or
to obtain an order from another country containing
terms identical to the custody and visitation
order issued in the United States (recognizing
that these orders may be modified or enforced
pursuant to the laws of the other country), as
a prerequisite to allowing a child to travel to
that county for visits.
Obtaining assurances that a party will return
from foreign visits by requiring the traveling
parent to provide the court or the other parent
or guardian with any of the following:
The travel itinerary of the child.
Copies of round trip airline tickets.
A list of addresses and telephone numbers where
the child can be reached at all times.
An open airline ticket for the left-behind parent
in case the child is not returned.
Including provisions in the custody order to facilitate
use of the Uniform Child Custody Jurisdiction
and Enforcement Act (Part 3 (commencing with Section
3400)) and the Hague Convention on the Civil
Aspects of International Child Abduction (implemented
pursuant to 42 U.S.C. Sec. 11601 et seq.), such
as identifying California as the home state of
the child or otherwise defining the basis for
the California court's exercise of jurisdiction
under Part 3 (commencing with Section
3400), identifying the United States as the
country of habitual residence of the child pursuant
to the Hague Convention, defining custody rights
pursuant to the Hague Convention, obtaining the
express agreement of the parents that the United
States is the country of habitual residence of
the child, or that California or the United States
is the most appropriate forum for addressing custody
and visitation orders.
Authorizing the assistance of law enforcement.
(3) If the court imposes any or all of the conditions
listed in paragraph (2),
those conditions shall be specifically noted on
the minute order of the court proceedings.
(4) If the court determines there is a risk of
abduction that is sufficient to warrant the application
of one or more of the prevention measures authorized
by this section, the court shall inform the parties
of the telephone number and address of the Child
Abduction Unit in the office of the district attorney
in the county where the custody or visitation
order is being entered.
(c) The Judicial Council shall make the changes
to its child custody order forms that are necessary
for the implementation of subdivision
(b). This subdivision shall become operative
on July 1, 2003.
Nothing in this section affects the applicability
278.7 of the Penal Code.