Best Interest of the Child

The phrase “best interest of the child” is commonly used in California child custody disputes. So, it is reasonable to ask what does this phrase mean? This article is intended to help you learn the legal meaning of the phrase “best interest of the child” or “child’s best interest” in California child custody disputes. We hop you find this blog useful.

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Court’s Discretionary Power

When it comes to child custody dispute in California, the law gives the family court judges a broad discretion in determining which parent gets custody. This discretionary standard means that one judge can rule in one way while another judge can rule in another way. Because the law gives this broad discretion to family court judges, it is often difficult to persuade an appellate court judge to reverse the custody determination of the lower family court. In cases where the appellate court does reverse the lower court’s decision it is often because the lower court judge has abused its discretion.  Thus, in most cases appeal can be a uphill battle.

Best interest of the child in California

Think of the concept of “best interest of the child” as a set of presumptions. What do I mean? Well, when you file a child custody petition, the court will automatically presume that it is in the best interest of the child to have a relationship with both parents. So, there is an automatic preference for joint legal and physical custody.

A parent who wants to argue that joint custody is not in the best interest of the child has the burden to overcome that presumption. That parent must persuade the judge (through facts, law and evidence) that joint custody is not in the best interest of the child.  If the court finds that the parent who wants sole custody has overcame this presumption the burden shifts to the other parent to prove that in fact joint custody is in the child’s best interest. This shifting of presumptions and burden of proof can become very complicated. Thus, it is a good idea to work with a family law attorney.

Agreement between parents

Very often when there is a custody dispute there is some sort of temporary arrangement between parents as to custody, visitation and decision making. This agreement may or may not be in writing. However, the judge often turns this arrangement into a temporary court order until there is an actual trial as to the merits of the case. The judges do this because the law says the judge can presume that an ongoing arrangement between parents regarding custody and visitation is presumed to be in the best interest of the child unless one party shows otherwise. So, an agreement between parents as to custody or visitation can easily overcome the presumption that the child should have equal time with both parents.

Other Factors- See Family Code § 3011

What does it take to persuade a judge a certain arrangement is not in the best interest of the child? The family code gives some factors for the judge to consider. However, there are so many other factors the judge can consider determining the best interest of the child.

Some of the statutory factors the judge will consider are the following:

  • Heath, safety, and welfare of the child;
  • Spousal or child abuse;
  • The nature and amount of contact with the parents;
  •  Abuse of illegal drugs, alcohol, or controlled substances;

Additionally, the court will consider which parent is more likely to allow the child to have a relationship with both parents. So, if the judges is persuaded that you won’t allow the child to have a relationship with the other parent, the judge may grant custody to the other parent.


In our opinion, you should work with a family law attorney to increase your chances of success in any family law matter outside and inside of the family court. In doing so, you will be able to use the right set of concepts and law to argue your position whether it is to the court or the other parent.

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