How does a judge determine who gets custody

How does a judge determine who gets custody – general provisions

How does a judge determine who gets custody how does a judge determine who gets custody How does a judge determine who gets custody 4606bd13ee4f4c8d95a2790a6deff60b 1032787851 300x300How does a judge determine who gets custody of the children is one of the most emotional questions divorcing parents have.

The best interest of the child is considered above anything. The parents’ feelings towards the child do not count when considering the child’s health, safety and welfare. California family code 3o11 has a general provision regarding the meaning of health, safety and wealth of the child in the context of child custody determination


The factors how does a judge determine who gets custody:

  • Child age
  • Parents living situation
  • Child’s relationship and attachment to parents
  • Child’s health and safety
  • Parents’ stability
  • Neglect and abuse
  • Willingness of co-parent
  • Child preferences
  • Who spent more time with the child up to the present date

Let’s look at the details of each factor listed above and explain how does a judge determine who gets custody based on each of them:

The child’s age is one of the important factors in answering the question How does a judge determine who gets custody. When the child is young, the judge would look at how much care he or she needs and who is capable to provide this care. If the mother is the one who prepares food for the child, changes his diapers, baths the child, does the laundry, and places him or her to bed, she is the primary caretaker and the physical custody would likely be in her favor will to consider for this factor.

Parents living situation. The house or condo where each parent lives. Who can provide a more comfortable environment for children who live in? The judge may consider if the children have their room. Ideally, each will have their own room. However, the financial situation of parents along  is not a ground for reducing a custodial time with that

A child’s health and safety is one the main part  how does a judge determine who gets custody . If either parent creates an unhealthy or unsafe environment for the child, it is unlikely that that parent would be awarded child custody.

A judge cannot grant custody to a parent who was convicted of first-degree murder of the child’s other parent. If one of the parents has a history of physical or sexual child abuse the judge would not rule in favor of that parent’s if any risk to the child based on such history. Even if there was no conviction, but the child protection agency was involved, the abusive parent would not likely get child custody.

Child’s relationship with the parent. Parent’s warmth and controlling in a positive way are essential parental attributes to create a positive effect on the child. Good emotional sensitivity to the child’s response to parent’s communication is a factor to consider how does a judge determine who gets custody.

Stability would include stability in society and at the home. Ability to produce a stable income, control emotion in public and at home as opposed to jumping from one job or business to another each couple of months.

Child neglect – How does a judge determine who gets custody

A parent who is not involved in the children’s performance at school, general development, and proper social development of a child has very little chance to be a custodial parent. Physical or emotional child abuse will place a significant impact on losing child custody.

Who is spending more quality time with the children up to the present date is one of the significant factors. The judge would look at the history of the last couple of years and conclude that a similar pattern will continue in the future.

Child preference – How does a judge determine who gets custody

How does a judge determine who gets custody based on the child’s preference does not depend on a specific child’s age. In some cases, the judges’ decision was based on the preference of 8 years old. Obviously The older the child the more mature his/her decision. If the child is 14 or older there would be more judge’s consideration over his preference. The reasons why child prefers one parent over the other. If the mother is strict in school and homework performance and the child does not like that the judge would not consider it as a reasonable preference.

Appointment of Counsel influence on How does a judge determine who gets custody

When we are discussing How does a judge determine who gets custody, we should point that the judge can order a private counsel to represent the interests of the child in child divorce or paternity case  if the judge decides that it is in the best interests of the child. The counsel for the minor will continue to represent until relieved by the court under the substitution of other counsel by court or cause.

There are certain guidelines for the court to consider whether to appoint a counsel for the child. For example, the court would look:

How protracted and intense child custody dispute;

If the child would be subjected to high stress by the counsel’s representation;

Whether child was subject to patent’s neglect, emotional or physical abuse;

Availability of the qualified in the particular issue counsel;

Whether representation of the best interest of the child would require the involvement of outside counsel;

Whether one or both parents are not capable to provide a secure and safe enough environment under the circumstances of the case.

It is important to distinguish counsel for minor and guardian ad litem. Although the purpose is very similar – a guardian ad litem is someone appointed by a court to represent the best interests of a child or anyone who is not able to represent his or her own interests in the court.

Unlike the ability to appoint counsel, the family law court can not appoint guardian ad litem for a child in a family law case. Under the Domestic Violence and Prevention Act and Family Code, there is the statutory ability for the appointment of a guardian ad litem. When a child is involved in a probate case or is incapacitated, the court might also appoint a guardian ad litem.


How does a judge determine who gets custody in case if there is domestic violence reported is impacted by Family Code Section 3044.

According to this family Code, the judge would give significant consideration  a domestic violence case if the parent was convicted of domestic violence in the last five years. Domestic violence could be not only against the children but against another parent as well. A  judge unlikely would grant sole or joint physical or legal custody to the perpetrator of domestic violence. There is a possibility that judge would award that spouse visitation rights.


Related article: How to win a child custody case in California.

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