When you’re going through a divorce and have a child in California (or if you’re never been married and you have a child together) you’ll often hear the term “best interest of the child” as it relates to child custody issues. However, this can be a difficult term to understand what that really means. I mean when it comes down to it both parents always want what’s in the best interest of the child, however, you and your co-parent may not agree on what that best interest is. Legally what it means is that all custody and visitation discussions (or parenting plans as we like to refer to them in mediation) are done with the ultimate goal of ensuring that the health, safety, and welfare of the child is the court’s primary concern. This means the court wants to ensure they’re fostering and encouraging the child’s happiness, security, mental health, and emotional development. While the best interest of the child isn’t the only thing a court would consider for child custody, it is the main factor that drives that decision.
There can be a great deal of discretion on the judge and the court to determine what the custody determination should be, but the judge must consider a variety of factors including, parental emotional and mental stability, parental criminal history, parent’s ability to look after the child and the child’s desires, given the child has reached a certain age and maturity (usually around 14 in California). The courts are firm in their stance all children (as they should) have the right to be safe and free from abuse and that the perpetration of domestic violence in a household where a child resides is detrimental to their health, safety, and well-being.
While the courts do believe that it is important for children to have frequent and continual contact with both parents after the parents have separated, divorced, or ended their relationship the court will not uphold that when the contact would not be in the best interest of the children. If one parent has a history of abuse against the child, the other parent, or someone else including a parent, current spouse, or cohabitant then the court will examine those allegations with a careful eye. They will in some situations require independent corroboration of those actions and this can certainly affect the amount of custody or visitation a parent is given.
Additionally, the courts will examine the nature and amount of contact with both parents. This includes how the parents have been involved in the child’s life and what they’ve done both during the marriage/relationship and after as well as how often that child has had contact with the parent.
The courts will also consider the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either party. Again, the court may require independent corroboration but when found this can be a reason that a child spending time with a specific parent is not in their best interest. If you have concerns about your co-parent, then you’ll need to be able to show as much evidence of these issues as you can.
Lastly, the sex, gender identity, gender expression, or sexual orientation of a parent should not in any way determine the best interests of the child and should have no bearing on the decisions the judge makes.
If you and your co-parent need help to determine what is the best interest of your child, contact West Coast Family Mediation Center for a FREE consultation. We are happy to walk through your options with you.
by: Amanda Singer