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Introduction to the 'Best Interest of the Child’ standard
By Hon. Thomas Trent Lewis

The best interest of the child standard applies almost universally in child custody decisions between parents. California case law, with limited assistance from the state's existing statutory scheme, serves as the foundation for a somewhat vague definition of the best interest standard that preserves judicial discretion without the constraints of an unduly fixed set of rigid considerations.

The objective of this article and self-study test is to familiarize readers with the elements of the best interest of the child standard used by courts in making child custody decisions, including, among other considerations, the child's religious training, parental absence from the residence, domestic violence and the child's preference.


A court must determine the best interest of a child in making a child custody order. Courts have a number of options in making the child custody order, including awarding joint custody (Family Code Section 3002), joint legal custody (Section 3003), joint physical custody (Section 3004), sole legal custody (Section 3006) and sole physical custody (Section 3007). The best interest of the child is the determining factor in choosing the option to use.

Defining the Best Interest of the Child standard

California statutory law identifies some of the key elements of the best interest standard by requiring a court to consider the health, safety and welfare of the children as among the primary concerns in determining the best interests of the children. Section 3020(a).

Abuse and domestic violence

Protecting children from abuse and victimization incident to domestic violence is given a high priority as an element of the best interest standard. Statutory provisions require any existing emergency protective orders, criminal protective orders or other restraining orders protecting against domestic violence to be considered in any findings or orders. Section 3100. Family courts must defer to any criminal protective order issued by a criminal court. Section 3100(c). The family court must also take steps to protect the confidentiality of the location of any domestic violence prevention center or shelter in which a party may be staying. Section 3100(d). Finally the court must consider the following factors among any other factors it finds relevant, in awarding custody: (a) the health, safety, and welfare of the child (Section 3011(a)); (b) any history of child abuse (Section 3011(b)); and (c) any history of abuse of the other parent or abuse of another with whom the parent has a significant relationship (Section 3011(b)(2)-(3)).

Physical disability

The principal case addressing the question of best interest of the child after the enactment of the no-fault divorce law in California remains Marriage of Carney, 24 Cal.3d 725 (1979). Carney focused on the question of whether a wheelchair-bound father was able to provide the parenting necessary for his boys. The court acknowledged that the health or physical condition of the parents may be taken into account in determining whose custody would best serve the child's interest, but the Supreme Court rejected a per se finding by the trial court that a disabled parent was somehow unable to provide a meaningful contribution to the child.

Friendly parent

In determining the best interests of a child, courts must also consider which parent will facilitate the other parent's frequent and continuing contact with the child. This factor was assigned the label of the "friendly parent." In re Keith R., 174 Cal.App.4th 1047 (2009). A friendly parent can be identified by the flexibility of a parent and his or her attitudes about the other parent. Parents who display an excessive sense of authority, entitlement, exhibitionism, exploitative tendencies, self-sufficiency, superiority and vanity usually lack the impulse control to hide tendencies even when parenting the child they profess to love. See Dr. Drew Pinsky, "The Mirror Effect" (2008).

Religious training

The First Amendment of the U.S. Constitution, and resulting federal and state law, constrain courts from making orders that enjoin a parent's religious observance and discussions. In custody proceedings, the court is frequently asked to consider the child's religious heritage and family history in making best interest determinations. There is a delicate balance between considering religious heritage or preference and issuing orders that prohibit or mandate religious observance.

In Wisconsin v. Yoder, 406 U.S. 205 (1972), the U.S. Supreme Court held that government intrusion into the parents' fundamental right to raise children in a particular faith violates the First Amendment. A California appellate court has held that a parent's religious beliefs alone do not render the parent unfit. Marriage of Urband, 68 Cal.App.3d 796 (1977).

This constitutional limitation, however, is not absolute. A court may limit a parent's right to religious expression if there is a showing of a substantial harm to the child. Marriage of Mentry, 142 Cal.App.3d 260 (1983). But, the harm must extend beyond mere confusion about religious tenets or past promises to raise a child in a particular faith. Marriage of Weiss, 42 Cal.App.4th 106 (1996).

In child custody proceedings, the spectrum of conflict about religious training and tenets frequently causes tension and confusion for the child. The court must balance these considerations of child confusion against the sanctity of the right to free religious expression; the decisional law protects the free expression of religious views even if a child is exposed to parental conflicts regarding the tenets of a particular faith.

Parental absence from the residence

In some cases, parents are absent from the family residence for prolonged periods of time for reasons such as military service, avoidance of family conflict, domestic violence, travel-related employment, care for extended family members, substance abuse or commitment to another relationship. The court's inquiry here considers (a) the reason for the absence and (b) how the parental absence affects the child. Depending on the reason for the absence, a party's absence from the residence for prolonged periods of time may be properly included or excluded for consideration in making a custody determination. Section 3046.

In this situation, the court would consider whether the absence was of short duration, whether the absent parent made reasonable efforts to maintain a relationship with the child, and whether the parent demonstrated an intent to abandon the child. Section 3046(a)(1). The court also assesses whether the absent parent was the victim of actual or threatened domestic violence (Section 3046(a)(2)) or whether the absence was the result of a pattern of interference in one parent's custodial access (Section 3046(b)).

Domestic violence

Avoiding domestic violence, as noted above, is given a high priority in determining the best interest of a child. It is well understood that domestic violence has an adverse impact upon children. Recent research suggests that courts should conduct an assessment analysis considering the nature and extent of the impact on the children. Domestic violence occurs if a person intentionally or recklessly causes or attempts to cause bodily injury or sexual assault, or places a person in reasonable apprehension of imminent serious bodily injury. Section 3044(c). Domestic violence includes, but is not limited to, threatening, striking, harassing, destroying personal property, disturbing the peace of another, or other behavior for which the court may issue a protective order Section 6320.

Court findings of domestic violence result in a rebuttable presumption against an award of sole or joint custody of the child to the perpetrator.(Section 3044(a). The court cannot ignore or discard the application of the presumption against an award of joint custody. S.M. v. E.P., 184 Cal.App.4th 1249 (2010). The existence of domestic violence trumps the preference for frequent and continuing contact (Section 3044(b)), and the court should not consider the preference for frequent and continuing contact with both parents (Section 3020(b)).

The presumption from findings of domestic violence, however, may be rebutted. Factors that may be established to rebut the presumption include (a) successful completion of a batterer's treatment program; (b) successful completion of a program for alcohol or drug abuse, where appropriate; (c) successful completion of a parenting class; (d) successful compliance with the terms and conditions of probation or parole; and (e) successful compliance with an existing protective order or restraining order. These factors must be established by a preponderance of the evidence. Section 3044(b).

The child's preference

Even though the U.S. has not adopted the provisions of the U.N. Charter respecting the rights of children in family court proceedings, California has enacted a statutory scheme that follows the charter (Section 3042) and has long recognized the importance of hearing the voice of the child in family court proceedings. Recently enacted legislation in California (AB 1050 and AB 939) further defines the process for receiving evidence from children in family law proceedings including alternative ways for the court to obtain information regarding the child's preferences if the court determines that calling a child as a witness would be detrimental to the child.

If the court finds that the child is of a sufficient age and capacity to reason and can form an intelligent preference as to custody, the court must consider and give due weight to those wishes as part of its best interest determination. However, there is no mandatory duty for the court to follow the child's wishes if there is doubt about the maturity of the child and the appropriateness of the child's stated preference. Marriage of Mehlmauer, 60 Cal.App.3d 104 (1976).

In some situations, the underlying conflict between the parents forces the child into expressing a choice. Marriage of Rosson, 178 Cal.App.3d 1094 (1986), proposed that a court should give greater weight to the child's wishes in proceedings related to a modification of a custody arrangement because the child had some history with the current arrangement.

Equally problematic is the question of how the court receives this evidence regarding a child's stated preference. The court must control the examination to protect the best interests of the child. Section 3042(b). Divergent views concerning the best methodology for receiving evidence from children range from use of in-chambers sessions with the child to formal open-court testimony by the child.

Other considerations

Substance abuse

The nature, extent, frequency, and severity of parental substance abuse are legitimate considerations in child custody best interest determinations. A court must make findings on the issue of habitual or continual illegal use of controlled substances. Section 3011(d). On the issue of corroboration of substance abuse, the court can consider the absence or presence of written reports from law enforcement agencies, courts, probation or social welfare departments, and medical facilities (Section 3011(d)).

Sexual orientation

Even before the advent of no-fault divorce, the sexual orientation of a parent alone was not a proper consideration in making a best interest determination under Nadler v. Superior Court (1967) 255 Cal.App.2d 523, and Marriage of Birdsall, 197 Cal.App.3d 1024 (1988). Indeed, California case law now extends the right to establish parentage to a same sex parent who has no biological connection to the child. Elisa B. v. Superior Court, 37 Cal.4th 108 (2005). As found by In re Marriage Cases, 43 Cal.4th 757 (2008), sexual orientation is now considered a suspect class in California, meaning that court consideration of sexual preference is a form of prohibited discrimination.

Psychological makeup

Finally, the court may consider a parent's psychological makeup or social history. A parent's mental illness alone, absent expert testimony about how the parent's behavior had and would adversely affect the children, is not a proper consideration in making an award of custody or visitation. In re Jamie M., 134 Cal.App.3d 530 (1982).

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