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How Is Child Custody Determined?

Last updated 6 years ago

Custody is a broad legal term that includes both legal and physical custody. Legal custody entitles one or both parents to make important decisions about issues such as healthcare and education for their children. Physical custody determines which parent the children live with and, as with legal custody, can be structured as joint or sole. A family lawyer can explain your custody rights in detail, but here is an introduction to how child custody is determined:

How Does a Judge Decide Who Gets Custody?

California law requires a judge to determine custody based on the best interest of the child.

What Factors Are Considered?

In order to determine the best interests of a child or children, the court will consider a number of factors. These include the age and health of the child, the emotional ties between parent and child, the ability of both parents to care for the child, any history of family violence or substance abuse, and the child’s ties to his or her community.

Can My Child Express His or Her Wishes?

Children who are 14 and older are allowed to express an opinion about their custody issues to the court, if they so choose. The judge must also consider what the child wants if he or she is “of sufficient age and capacity to reason.” However, the child’s opinion is not determinative.

Is There an Automatic Preference for One Parent?

California courts do not automatically give custody to the mother. The courts also cannot deny someone’s custody rights solely because he or she and the other parent were never married.

If you are considering divorce and have children, then you will need to work out custody with your spouse. Family law is complex, and it is important to find an attorney with experience handling divorce and custody issues. At Moreno Family Law, we focus exclusively on family law cases in San Jose—which is why we are so good at what we do. Call us today at (408) 266-9011 to learn how we can help.


The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use and access to this website or any of the links contained within the site do not create an attorney-client relationship. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.


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