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RobertJDFL, Lawyer
Category: Family Law
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Experience:  Experienced in multiple areas of the law.
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If we get a divorce we have three boys ages 15, 12, 9 the two

Customer Question

If we get a divorce we have three boys ages 15, 12, 9 the two oldest boys want to go with me the nine year old undecided how does the court decide.
Submitted: 5 years ago.
Category: Family Law
Expert:  RobertJDFL replied 5 years ago.

Good afternoon, thank you for your question.


Courts will decide issues of custody based on what they feel is in the best interest of the children. While the court may consider the wishes of an older child, it is not binding o the court and they do not have to grant a child's request if they feel it is not in their best interest.


In making the "best interest" determination, the court can consider any "relevant" factors. [Ca Fam § 3011] The court "must look to all the circumstances bearing on the best interest of the minor child"


However, among all the relevant factors, trial courts must consider the following (Ca Fam § 3011):


1. Child's Health, Safety, And Welfare: A "best interest" determination must take into account the child's health, safety and welfare. [Ca Fam § 3011(a); see also Ca Fam § 3020(a),(c)]. This is a paramount policy concern.


2. History Of Physical Abuse: The court must also consider any history of abuse by one parent or any other person seeking custody against (Ca Fam § 3011(b)) the child, the person seeking custody, or the current spouse.


As a prerequisite to consideration of allegations of physical abuse, the court may require "substantial independent corroboration" . . . including, but not limited to, written reports by law enforcement agencies, child protective services, etc.


3. Certain violent crimes restrict custody or unconditional visitation awards

A. Registered Sex Offender Or Child Abuse Conviction: Neither custody nor unsupervised visitation may be awarded to a parent or any other person who either (i) is required to be registered as a sex offender under Ca Penal § 290 where the victim was a minor, or (ii) has been convicted of specified child abuse offenses (under Ca Penal §§ 273a, 273d or 647.6) . . . unless the court finds there is "no significant risk to the child" and states its reasons in writing or on the record. [Ca Fam § 3030(a)]

B. Child Conceived By Rape: Without exception, no person convicted of rape pursuant to Ca Penal § 261 may be granted custody or visitation with respect to a child conceived by that act of rape. [Ca Fam § 3030(b)]

C. First Degree Murder Of The Other Parent: Neither custody nor unsupervised visitation may be granted to a person convicted of first degree murder (Ca Penal § 189) of the child's other parent . . . unless the court finds there is no risk to the child's health, safety and welfare and states its reasons in writing or on the record. [Ca Fam § 3030(c)]

D. History Of Drug And Alcohol Abuse: In determining the child's best interest, trial courts must also consider either parent's "habitual or continual illegal use of controlled substances" (as defined in Ca Hlth & S § 11000 et seq.) or "continual abuse of alcohol." [Ca Fam § 3011(d)]

Before considering allegations of a parent's drug or alcohol abuse, the court may require "independent corroboration"--such as written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical and rehabilitation facilities, or other organizations providing drug and alcohol abuse services. [Ca Fam § 3011(d)]

4. Stability And Continuity Of Environment: Although not reduced to express statutory terms, a significant component of the "best interest" assessment is the policy goal of protecting a stable custody arrangement. "As we have repeatedly emphasized, the paramount need for continuity and stability in custody arrangements--and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker--weigh heavily in favor of maintaining ongoing custody arrangements." [Marriage of Burgess (1996) 13 Cal.4th 25, 32-33, 51 Cal.Rptr.2d 444, 449-450 (emphasis added); see Burchard v. Garay (1986) 42 Cal.3d 531, 538, 229 Cal.Rptr. 800, 804-805]


5. Separation Of Siblings: California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. [Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815, 105 Cal.Rptr.2d 923, 927-998]


6. Child's Wishes: The court must "consider" and give "due weight" to the wishes of children who are of "sufficient age and capacity to reason so as to form an intelligent preference as to custody." [Ca Fam § 3042(a); see also Ca Fam § 3030(c)(1)].


This is not a complete list, but gives you a good indicator of the thought that goes into the court's decision making process.


Please let me know if I have not fully addressed your concerns.

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