What factors does a judge look at when making a decision about custody and visitation with my child/grandchild?

The Legal Standard: “Best interest of the child”:

As we stated earlier, when deciding whether to let you see, care for, or make decisions for your child or grandchild, the judge must find that it would be in the “best interest of the child” to allow you the contact you desire.[2349] To make this decision, a judge looks at many parts of a child’s life and relationship with you, as well as the other people in the child’s life.[2350]

For the most part, there are no hard and fast rules about what is in a child’s “best interest,” in particular when it comes to considering a parent or caregiver’s criminal record. Certain convictions may ban you from reunifying with your child, and you can learn about those in the chart on PG. 726. But in most cases, the judge will consider many factors.

Factors a judge will look at about THE CHILD include, but are not limited to, the child’s:

    School needs;
    Relationship with each parent (or caregiver);
    Connections at home, school, and in the community;
    Each parent’s (or caregiver’s) ability to care for the child;
    Any history of family violence or substance abuse by either parent (or caregiver).
Factors a judge will look at about YOU include, but are not limited to:
    Whether you’ve had a smooth transition back to the community;
    Whether you’ve made reasonable efforts to stay in touch with your child;[2351]
    Your criminal record (to which convictions will make it more difficult or even impossible to reconnect with your child, see the chart on PG. 726);
    How much contact you currently have (and/or previously had) with your child;[2352]
    If you have the ability of parents to care for child (money, housing, job, stability, etc.);
    How much time you were away from your child while in prison or jail, especially if you were unable to stay in touch with him/her during this period;[2353]
    If you have a history of substance abuse (see the next question);

These factors will all go into the judge’s decision about what is in the “best interest of the child,” and your custody and visitation rights as a parent or caregiver.

  1. 2349

    Cal. Fam. Code § 3011.

  2. 2350

    Jud. Council of Cal., Basics of Custody & Visitation Order, (2016) http://www.courts.ca.gov/17975.htm.

  3. 2351

    See Cal. Fam. Code § 3040 et seq.

  4. 2352

    Cal. Fam. Code § 3011(c).

  5. 2353

    The judge will consider how long you were away, your child’s age during this time, and how strong your relationship with your child is. Telephone call with Eleanor Miller, reentry attorney, Pepperdine Legal Aid Clinic, Jan. 6, 2015.