Best Interest of The Child

What Does the Term Best Interest of The Child Mean in a Carlsbad Divorce

Pierre Domercq Child Custody and Visitation

What does the term Best Interest of a Child mean in a Carlsbad divorce and how does this affect child custody and parenting time?  There is no statutory definition of “best interest of the child.” Cal. Rules of Court, rule 5.2 (b)(7) defines “best interest of the child” as being described in Fam. Code §3011. Curiously, that statute does not contain a definition, only a list of factors to be considered, such as domestic violence.

Although long repealed, Cal. Rules of Court, Appendix, sec. 26 is an attempt at providing a working definition. This now repealed section provided: “The ‘best interest of the child’ is a broad concept that involves the following principles: (i) promoting social, cognitive, emotional, and physical well-being; (ii) enabling optimal development as a productive member of our society; (iii) minimizing exposure to danger, abuse, neglect, and family conflict; and (iv) ensuring frequent and continuing contact with both parties so far as it is consistent with the above….” (Former Cal. Rules of Court, Appendix, sec. 26 (f).)

Family Code Section 3011 lists the following factors for the court to consider:
(a) The health, safety, and welfare of the child.
(b) Any history of abuse by one parent or any other person seeking custody against any of the following:
(1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary.
(2) The other parent.
(3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.
As a prerequisite to considering allegations of abuse, the court may require substantial independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this subdivision, “abuse against a child” means “child abuse” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in paragraph (2) or (3) means “abuse” as defined in Section 6203 of this code.
(c) The nature and amount of contact with both parents, except as provided in Section 3046.
(d) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this subdivision, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.
(e)(1) Where allegations about a parent pursuant to subdivision (b) or (d) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (b) of Section 6323.
(2) The provisions of this subdivision shall not apply if the parties stipulate in writing or on the record regarding custody or visitation.

What does the term Best Interest of a Child mean in a Carlsbad divorce and how does this affect child custody and parenting time?  Because the term is so vague and subject to much interpretation of the facts, the Court has broad discretion in making an award of custody by exercising its judgment to ascertain what the Court believes is in the best interest of the child.