Child Custody Attorney

Family Code Section 3020(a) declares it is public policy that the child’s health, safety, and welfare is the court’s primary concern in determining the best interest of the child when making custody and visitation orders. Moreover, while Section 3020(b) states it is also public policy that children have frequent and continuing contact with both parents after divorce, Section 3020(c) makes clear that where these two public policies conflict the child’s health, safety and welfare takes precedence.

In evaluating the best interests of a child for custody and visitation orders the court will give weight to the emotional bonds between the child and each parent in an effort to protect continuity of care, nurturing and attention. Accordingly, the court will consider whether the child has lived with one parent for a significant period of time such that continuity of care requires maintaining the current custody arrangement.

The best interests of the child requires consideration of whether a parent is engaged in the abuse of alcohol or drugs. When an allegation of drug or alcohol abuse is made the court may require substantial independent corroboration including reports from law enforcement, courts, medical facilities, and other agencies and organizations. If the court determines based upon the preponderance of the evidence (more likely than not) that a parent is habitually abusing drugs or alcohol it may order the parent to undergo the least intrusive method of testing for the controlled substance or alcohol. However, even a positive test result by itself cannot be grounds for an adverse custody order; rather, the positive result must be weighed in light of the other factors relevant to the child’s best interest.

The court will consider any history of abuse when making a custody and visitation order consistent with the best interests of the child. The history of abuse is not limited to the parent-child; it also includes a history of abuse between the parents, current spouse, cohabitant, step-child or adult with whom the parent is engaged in a relationship.

When an allegation of abuse arises the court will look for independent corroboration just as it does when allegations of drug or alcohol abuse arise. Substantial independent corroboration can come from written reports from law enforcement, courts, CPS, medical facilities and other agencies and organizations.

As domestic violence is detrimental to the child’s welfare and thereby best interest, the family code creates a legal presumption against custody for perpetrators of domestic violence. Specifically, if the family court finds that a party has perpetrated an act of domestic violence within the past 5 years there is a mandatory rebuttable presumption that granting sole or joint custody to the perpetrator of domestic violence is detrimental to the child’s best interest.

What qualifies as “perpetrating domestic violence” giving rise to the mandatory presumption is quite broad and includes:

• recklessly or intentionally causing or attempting to cause bodily injury or sexual assault;
• placing a person in reasonable apprehension of imminent serious bodily injury; &
• engaging in behavior warranting issuance of an order to protect either the other parent seeking custody or the child. For example, behavior like destruction of personal property, harassment, or making threats.

In addition to the best interests of the child, the court will consider other factors such as the preferences of the child if the child is of sufficient age to form an intelligent preference; status of a party as a sex offender; allegations of child sexual abuse; and a party’s absence in certain circumstances.