When it comes to determining custody and visitation rights, the legal standard is that it has to be decided based on the best interest of the child. Although seemingly simple and straightforward, this standard can be quite challenging to uphold. The best interest of the child is a relative subject and can only be fully grasped through evaluation of statutory factors.
According to Sec. 3011 of the Family Code, in deciding the best interests of the child the following factors,among many others the court finds relevant, shall be considered:
◦ A child to whom he or she is related by blood or affinity or with whom he or she has had a interrelationship, no matter how temporary;
◦ The other parent;
◦ A parent, current spouse, or cohabitant of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
When making custody or visitation orders, the court's primary consideration is always the health safety, and welfare of the child. The court sees to it that the prospective custodial parent or guardian must be able to: (1) comfortably provide the basic needs of the child such as food, shelter, and education; (2) ensure the physical safety of the child; (3) provide a healthy environment for the child.
It is important to understand that the court considers the history of all types of abuse not only directed towards the child but also against other people, as specifically enumerated in Sec.3011 of the Family Code. Abuse, in this context, is defined as the maltreatment against another person that can be manifested through physical, psychological,sexual, or emotional forms. It can also refer to acts that intend to degrade or demean another person or the unreasonable deprivation of a person's basic needs.
Allegations of abuse must be duly proven before the court for the latter to recognize or take consideration of the same. Thus, the person who alleges the existence of abuse must be able to provide substantial corroborative evidence such as, but not limited to, written reports from other courts, medical facilities, law enforcement agencies, and social welfare agencies.
The quality and quantity of the child's contact with both parents also factors in custody and visitation proceedings. The court recognizes the child's need for stability, security, and continuing care, as the sudden disruption of established routines or relationships may adversely affect a child's emotional growth. A child's relationship to a parent has bearing when it comes to deciding who should be granted custodial rights. Naturally, the court must consider the parent-child relationship and the length of time the child has been in the temporary custody of one parent.
In order to ensure the safety of the child, the court must also look into the history of alcoholism or drug abuse of either parent or guardian. This is essential in ensuring that the child ends up with the person most fit to take care of and provide for them.However, before the court acknowledges allegations of drug or alcohol abuse, it may require substantial corroborative evidence as well; fairly similar to the required evidence in allegations of abuse. The court may also order the accused parent to undergo drug testing.
It is upon the discretion of the court to consider other factors it may deem relevant in custody determinations.However, these may be contested if the parties deem the same improper or that-they do not pose any harm to the child (i.e.gender of parent, race,physical disability, religion, parents' comparative income, sexual orientation,sexual relations).
