“Sole physical custody” means that a child shall reside
with and be under the supervision of one parent, subject
to the power of the court to order visitation.
“Joint physical custody” means that each of the parents
shall have significant periods of physical custody. Joint
physical custody shall be shared by the parents in such a
way so as to assure a child of frequent and continuing
contact with both parents, subject to Sections 3011 and
3020.
“Sole legal custody” means that one parent shall have the
right and the responsibility to make the decisions
relating to the health, education, and welfare of a child.
“Joint legal custody” means that both parents shall share
the right and the responsibility to make the decisions
relating to the health, education, and welfare of a child.
In making a determination of the best interest of
the child in a proceeding described in Section
3021, the court shall, among any other factors it
finds relevant, consider all of the following:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any
other person seeking custody against any of the
following:
(1) Any child to whom he or she is related by
blood or affinity or with whom he or she has had a
caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of
the parent or person seeking custody, or a person with
whom the parent or person seeking custody has a dating
or engagement relationship.
As a prerequisite to the consideration of allegations
of abuse, the court may require substantial
independent corroboration, including, but not limited
to, written reports by law enforcement agencies, child
protective services or other social welfare agencies,
courts, medical facilities, or other public agencies
or private nonprofit organizations providing services
to victims of sexual assault or domestic violence. As
used in this subdivision, “abuse against a child”
means “child abuse” as defined in Section 11165.6 of
the Penal Code and abuse against any of the other
persons described in paragraph (2) or (3) means
“abuse” as defined in Section 6203 of this code.
(c) The nature and amount of contact with both
parents, except as provided in Section 3046.
(d) The habitual or continual illegal use of
controlled substances or habitual or continual abuse
of alcohol by either parent. Before considering these
allegations, the court may first require independent
corroboration, including, but not limited to, written
reports from law enforcement agencies, courts,
probation departments, social welfare agencies,
medical facilities, rehabilitation facilities, or
other public agencies or nonprofit organizations
providing drug and alcohol abuse services. As used in
this subdivision, “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.
(e)(1) Where allegations about a parent pursuant
to subdivision (b) or (d) have been brought to the
attention of the court in the current proceeding, and
the court makes an order for sole or joint custody to
that parent, the court shall state its reasons in
writing or on the record. In these circumstances, the
court shall ensure that any order regarding custody or
visitation is specific as to time, day, place, and
manner of transfer of the child as set forth in
subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not
apply if the parties stipulate in writing or on the
record regarding custody or visitation.
Domestic Violence/Abuse -
California Family Code Section 3044(a)
(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.
Order of Preference -
California Family Code Section 3040(a)(1)
(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:
(1) 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 with
Section 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.
(2) If to neither parent, to the person or
persons in whose home the child has been living in
a wholesome and stable environment.
(3) 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.
(b) 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.