Many divorcing parents in Sacramento and elsewhere think that the determination of child custody will depend upon whether the court finds one parent or the other to be “unfit.” In such cases, one or both parents may strive to persuade their lawyers to introduce evidence proving that the other parent is “unfit” to have either sole or joint custody of their children. Such efforts are generally wasted because California law does not use the concept of parental fitness to determine child custody and visitation issues. Instead, the courts focus on the kind of environment that each parent can provide and how the child will fare in that environment.

California law prescribes an order of preference for determining child custody. All rulings on this issue must ensure that the best interests of the child will be properly served. The first candidates are both parents jointly or to one parent or the other. If the court grants custody to either parent, it shall consider which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent. If custody is not granted to either parent, the court shall award custody to the person or persons with whom the child has been living, if the environment is wholesome and stable. The third class of potential custodial parents is any other person deemed by the court to be able to provide adequate and proper care and guidance for the child.

The statute that contains these priorities specifically states that is does not establish a preference or presumption for or against joint legal custody, joint physical custody or sole custody. A custody decision may be significantly affected by a finding that one or both parents are addicted to illegal drugs or that one or both parents has engaged in domestic violence toward another family member.

Life after a divorce is often significantly different from what it was before and facing the unknown can be overwhelming. Anyone with questions about child custody may wish to consult an experienced divorce attorney for advice on how a judge may view their specific family situation.