What are the orders of preference regarding child custody in California?

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Question:

What are the orders of preference regarding child custody in California?

Answer:

In California, the family court or judge assigned to a divorce case will try to make decisions regarding any child(ren) that will be in the children's best interest.  That means that, unless there has been a history of domestic violence or child abuse, the court will make every attempt to ensure that both parents have "frequent and continuing contact." 

California Family Code section 3040 gives the order of preference for children in a divorce as follows:

  • 1st—To both parents jointly, or to one parent in which case it shall be the one that is more likely to allow the child "frequent and continuing contact" with the non-custodial parent.  The court is not allowed to make a decision based on the sex of the parent, but may require the parents to submit a plan for how the court's decision will be carried out.
  • 2nd—If neither parent is a viable option, the next order of preference is given to whoever the child has been living with as long as it is a stable and wholesome environment for a child.
  • 3rd—Failing that, to any other person that is deemed by the court able to provide a stable and wholesome living environment for the child.  This section allows courts the widest possible discretion when deciding who to allow the child to live with in difficult cases.
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