Who Decides? The Parents, The Court, or The Child?

Individuals going through a divorce who have minor children often come face to face with the reality that unless they reach an agreement, the fate of who takes custody and what visitation schedule will be implemented will be decided for them by the Court.

The Court has broad discretion in making custody orders in divorce cases. Judges can make decisions regarding whether custody will be shared, or whether one parent will be awarded sole or primary custody. The Court has broad discretion to decide what visitation schedule should be implemented, or whether a parent’s visitation should be supervised by a professional monitor, or if parental rights should be terminated altogether. The guiding principle in making these decisions comes down to what is in “the best interests of the child.”[1] The question then becomes what goes into making this determination and what can, and cannot, be considered by the Court.

Judges are guided by many factors that assist them in determining what is in the child’s best interests in a custody proceeding. First and foremost, the Court considers the child’s health, safety, and welfare.[2] Is the health, safety, or welfare of the child in jeopardy when/if the child is in the care of one parent? In coming to this decision, the Court considers whether there had been a history of abuse by one parent against the child or against the other parent or a sibling or cohabitant.[3] The Court also considers whether there has been a history of habitual or continued illegal use of controlled substances, or habitual use of alcohol or prescription medication.[4] These factors impact a Judge’s decision when making custody decisions. What the Court CAN NOT consider is a parent’s sex, gender identity, or sexual orientation when determining what is in the child’s best interests.[5] Courts also cannot consider a parent’s immigration status. Courts have also found that a history of current mental illness should not serve as an immediate roadblock to custody. The legislature in California has determined that individuals with mental health issues are fully capable of being loving and supportive parents and that no parent should lose custody of their child due solely to a manageable mental health issue.[6]

Another important factor Courts consider when determining what is in the best interests of the child is the ability of each parent to care for the child. This is of paramount importance. Is the parent even capable or willing to care for this child? In determining the best interests of the child, the Court will consider the parent’s relationship with the child prior to the separation and the nature and amount of contact with both parents.[7] Was the parent the primary caretaker of the child? Was the parent the one who routinely took the child to school, assisted with their homework, and assisted with bath time and bedtime? How involved was the parent in the day-to-day life of the child? This is not to say, however, that if one parent “took a back seat” in the parenting department during the marriage, they will not be granted custody of their child. Courts understand that in some relationships, one parent might have assumed a bigger role in parenting than the other. This might have been due to their work schedule or other factors. Courts want to allow both parents to have the opportunity to raise their children and to be involved in their children’s lives equally.

This is fundamentally in line with the public policy in California which is to ensure that children have frequent and continuing contact with both parents after the parents have separated or divorced. Unless it would not be in the best interests of the child, Courts encourage parents to share in the rights and responsibilities of child-rearing.

A common question family law lawyers get asked is “What about my child’s preference? Does the court care who the child wants to live with?”

The answer, you guessed it, is “it depends.”

The law provides that if the child is of sufficient age and capacity to form an intelligent preference as to custody and visitation, then the court “shall” consider, and give due weight to, the wishes of the child in making custody orders.[8] Notice the legislature chose to use the word “shall”. It is, again, within the discretion of the Court. Some parents mistakenly believe that once a child reaches the age of fourteen (14) that their wish is the Court’s command. This is not so. If the Child is 14 years of age or older and they wish to address the court regarding custody and visitation, the court “shall” permit them to do so, unless the court feels that doing so is not in the child’s best interest.[9] This does not mean a child under the age of 14 cannot ever be allowed to address the court regarding custody or visitation, they still can if the court determines that it is appropriate for them to do so pursuant to the child’s best interests.[10]

If the court does not allow either parent to call the child as a witness, the court can provide alternative means of obtaining input from the child about their preferences when it comes to custody and visitation. The child’s preference might have been communicated to the minor’s counsel appointed to represent the child in the proceeding, or to a child custody evaluator appointed to make a child custody determination in the case.

In making the determination of whether the child is of sufficient age and capacity to form an intelligent preference as to custody and visitation, the courts consider several factors. One of the factors is whether the child may be at risk emotionally if they are permitted to address the Court. The Court can also consider whether the child’s anticipated testimony is relevant to the custody proceedings and the decision-making process. Of course, the child’s desire to do so is also one of the factors the court considers.

Typically, Courts do not permit the child who is allowed to address the court to do so in front of the parties, i.e., their parents.[11] The Judge can decide to speak to the child in his/her chambers, outside the courtroom. If the child is ten years or older, the child can be heard by the court in chambers regarding the feelings and thoughts they have about the custody proceedings, their feelings and thoughts about their parent or parents, and their preference as to custody.[12]

Lastly, in some cases, the Court can make the determination that parental custody would be detrimental to the child and that the child should be placed outside the care of either parent.[13] In order to do so the Court has to first make a finding that granting custody to either parent would be detrimental to the child and that instead granting custody to the non-parent is required to serve the best interests of the child.

Child Custody proceedings can be a harrowing experience for parents and for children. Leaving custody and visitation decisions up to a Judge can make anyone feel helpless. Prior to appearing before the Court, parents seeking court assistance in making custody decisions are often required to first attend a mandatory mediation. The mediator assists the parties in coming to a decision outside of court that is in the best interests of the child. Family Law lawyers should always encourage their clients to participate in these mediations with an open mind and open heart, for the best interests of their child.

[1] Fam Code Section 3020

[2] Fam Code Section 3020(a)

[3] Fam Code Section 3011(a)(2)(A)

[4] Fam Code Section 3011(a)(4)

[5] Fam Code Section 3020(d)

[6] Stats. 2022, Ch. 385, Sec. 1

[7] Fam Code Section 3046

[8] Fam Code Section 3042(a)

[9] Fam Code Section 3042(c)

[10] Fam Code Section 3042(d)

[11] Fam Code Section 3042(f)

[12] Fam Code Section 7891

[13] Fam Code Section 3041


  • Tenny Amin

    Tenny focuses her practice exclusively on Family Law and Family Law Mediation. Well-known for her effective and assertive representation, Tenny has extensive experience in handling all aspects of family law cases ranging from mediation to trials involving child custody and child support, spousal support, and division of property. Committed to the intelligent and effective representation of her clients, Tenny focuses her practice on intricate custody disputes as well as cases involving the characterization and division of high asset and complex marital estates. Tenny also currently practices as a certified Mediator in Family Law. She is the creator and host of the Family Law Podcast, “For Better or Worse: Family Law Happy Hour”, currently featured on Apple, Google, and Spotify.