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Joseph R. Zoucha, Attorney & Counselor at Law

How courts decide on child custody

Child custody is one of the most difficult issues to resolve in many divorces. The parents must find a way to balance their parental rights with the best interests of their children. What's more, they have to negotiate a parenting plan with their ex, often while they're still in the midst of arguing about property division and other issues. If they can't reach agreement, a court will make a decision for them.

California courts recognize two types of child custody, physical and legal. Physical custody refers to where the child lives most of the time. Legal custody refers to a parent's rights to make decisions about the child's health, education and general welfare.

As in all family law matters involving children, California courts make their decisions about child custody based on their determination of the best interest of the child. Beyond that, they look at factors such as: the child's age; the child's health; the emotional relationship between the child and either parent; the parents' ability to care for the child; a history of family violence or substance abuse, if any; and the child's ties to their community, including neighborhood and school.

These factors are not the only ones the court may consider. In some cases, when the court determines that neither parent can provide a safe home for the child, it may award custody to a guardian who is a third party. However, in no case should a California court make child custody decisions based solely upon the parent's marital status, sexual orientation or religion.

While courts can reach good decisions about child custody, many parents would rather make these decisions themselves, even if it is hard to reach an agreement with an ex. After all, parents generally know their own children better than a judge does. A skilled family law attorney can help parents develop a custody and parenting plan that respects their rights while putting their child's best interests first.

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