Illegal Child Custody Factors

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California family courts award custody based on the best interest of the child. While there are a number of factors that are relevant in making child custody orders, there are also factors that should NOT be considered.

It is important to know which factors are relevant in the determination of a child custody award to be able to fully present your case for child custody. It is also equally important to know which factors are irrelevant in order to be able to defend your case against the opposing custody attorney.

In determining the suitability of a parent to have custody, family courts may NOT consider these factors:

• Sex of the parent – The court shall give no preference in the award of custody solely on the basis of a parent’s sex.

• Race – A parent’s race shall not have any bearing in whether an award of custody shall be granted or denied. In fact, fears of possible harm to the child because of racial prejudice after a parent entered into an interracial marriage are not proper grounds to remove the child from the parent’s custody.

• Physical Disability – Physical disability, on its face, cannot be considered as evidence of the unfitness of a parent. Neither does it establish probable detriment to the child.

• Religion – A parent’s religion should not be a factor in determining custody. In fact, parents may not be prohibited from discussing religion with the child or from involving the child in religious activities. The exception being that there is compelling evidence that the involvement would be harmful to the child.

• Parent’s Comparative Income – The economic advantage of one parent or the disadvantage of the other is not a permissible basis for the award of custody. There is no correlation between wealth and good parenting. Neither is there any correlation between wealth and happiness. Instead of removing custody from a parent whose income may be found to be insufficient, the proper remedy would be for the court to award child support. The care of a mother who must entrust her child to daycare is not per se inferior to care given by a father who also works but can leave the child with a stepmother at home. The fact that a custodial parent would have to place their child in daycare does not, alone, justify the change of physical custody to the other parent.

• Sexual Orientation – Insofar as the court finds it relevant, the sexual orientation of a parent is only one factor to be considered in determining custody. However, sexual orientation alone cannot be a basis in determining an award of custody or the restriction of visitation. In fact, the court cannot prohibit overnight visitations of a homosexual parent and the child in the presence of other persons known to be homosexual absent any clear showing that such would be detrimental to the child.

• Sexual Relations – Unless there is compelling evidence that a parent’s sexual conduct has significant bearing on the child’s welfare, a parent’s sexual relations has no relevance in the awarding of custody. The court cannot prohibit a custodial parent from having overnight visitors of the opposite sex unless direct jeopardy is placed on the minor child’s welfare. There must be a clear showing that the parent’s sexual conduct adversely affects the child’s home environment.

However, keep in mind that although the above-mentioned factors are improper in determining custody, they may be considered on one instance, that is when there is compelling evidence that any of these factors will cause harm to the child. As in all custody cases, the best interest of the child is of primary importance.

Speak to a child custody attorney to help you prove that you have the best interest of your child in mind. To schedule a free consultation call family law attorney Jin Kim at (916) 250-1610 from 8 AM to 6 PM.