2009 California Family Code - Section 3040-3048 :: Chapter 2. Matters To Be Considered In Granting Custody

FAMILY.CODE
SECTION 3040-3048

3040.  (a) Custody should be granted in the following order of
preference according to the best interest of the child as provided in
Sections 3011 and 3020:
   (1) To both parents jointly pursuant to Chapter 4 (commencing with
Section 3080) or to either parent. In making an order granting
custody to either parent, the court shall consider, among other
factors, which parent is more likely to allow the child frequent and
continuing contact with the noncustodial parent, consistent with
Section 3011 and 3020, and shall not prefer a parent as custodian
because of that parent's sex. The court, in its discretion, may
require the parents to submit to the court a plan for the
implementation of the custody order.
   (2) If to neither parent, to the person or persons in whose home
the child has been living in a wholesome and stable environment.
   (3) To any other person or persons deemed by the court to be
suitable and able to provide adequate and proper care and guidance
for the child.
   (b) This section establishes neither a preference nor a
presumption for or against joint legal custody, joint physical
custody, or sole custody, but allows the court and the family the
widest discretion to choose a parenting plan that is in the best
interest of the child.

3041.  (a) Before making an order granting custody to a person or
persons other than a parent, over the objection of a parent, the
court shall make a finding that granting custody to a parent would be
detrimental to the child and that granting custody to the nonparent
is required to serve the best interest of the child. Allegations that
parental custody would be detrimental to the child, other than a
statement of that ultimate fact, shall not appear in the pleadings.
The court may, in its discretion, exclude the public from the hearing
on this issue.
   (b) Subject to subdivision (d), a finding that parental custody
would be detrimental to the child shall be supported by clear and
convincing evidence.
   (c) As used in this section, "detriment to the child" includes the
harm of removal from a stable placement of a child with a person who
has assumed, on a day-to-day basis, the role of his or her parent,
fulfilling both the child's physical needs and the child's
psychological needs for care and affection, and who has assumed that
role for a substantial period of time. A finding of detriment does
not require any finding of unfitness of the parents.
   (d) Notwithstanding subdivision (b), if the court finds by a
preponderance of the evidence that the person to whom custody may be
given is a person described in subdivision (c), this finding shall
constitute a finding that the custody is in the best interest of the
child and that parental custody would be detrimental to the child
absent a showing by a preponderance of the evidence to the contrary.
   (e) Notwithstanding subdivisions (a) to (d), inclusive, if the
child is an Indian child, when an allegation is made that parental
custody would be detrimental to the child, before making an order
granting custody to a person or persons other than a parent, over the
objection of a parent, the court shall apply the evidentiary
standards described in subdivisions (d), (e), and (f) of Section 1912
of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and
Sections 224.6 and 361.7 of the Welfare and Institutions Code and the
placement preferences and standards set out in Section 361.31 of the
Welfare and Institutions Code and Section 1922 of the Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.).

3041.5.  (a) In any custody or visitation proceeding brought under
this part, as described in Section 3021, or any guardianship
proceeding brought under the Probate Code, the court may order any
person who is seeking custody of, or visitation with, a child who is
the subject of the proceeding to undergo testing for the illegal use
of controlled substances and the use of alcohol if there is a
judicial determination based upon a preponderance of evidence that
there is the habitual, frequent, or continual illegal use of
controlled substances or the habitual or continual abuse of alcohol
by the parent, legal custodian, person seeking guardianship, or
person seeking visitation in a guardianship. This evidence may
include, but may not be limited to, a conviction within the last five
years for the illegal use or possession of a controlled substance.
The court shall order the least intrusive method of testing for the
illegal use of controlled substances or the habitual or continual
abuse of alcohol by either or both parents, the legal custodian,
person seeking guardianship, or person seeking visitation in a
guardianship. If substance abuse testing is ordered by the court, the
testing shall be performed in conformance with procedures and
standards established by the United States Department of Health and
Human Services for drug testing of federal employees. The parent,
legal custodian, person seeking guardianship, or person seeking
visitation in a guardianship who has undergone drug testing shall
have the right to a hearing, if requested, to challenge a positive
test result. A positive test result, even if challenged and upheld,
shall not, by itself, constitute grounds for an adverse custody or
guardianship decision. Determining the best interests of the child
requires weighing all relevant factors. The court shall also consider
any reports provided to the court pursuant to the Probate Code. The
results of this testing shall be confidential, shall be maintained as
a sealed record in the court file, and may not be released to any
person except the court, the parties, their attorneys, the Judicial
Council, until completion of its authorized study of the testing
process, and any person to whom the court expressly grants access by
written order made with prior notice to all parties. Any person who
has access to the test results may not disseminate copies or disclose
information about the test results to any person other than a person
who is authorized to receive the test results pursuant to this
section. Any breach of the confidentiality of the test results shall
be punishable by civil sanctions not to exceed two thousand five
hundred dollars ($2,500). The results of the testing may not be used
for any purpose, including any criminal, civil, or administrative
proceeding, except to assist the court in determining, for purposes
of the proceeding, the best interest of the child pursuant to Section
3011 and the content of the order or judgment determining custody or
visitation. The court may order either party, or both parties, to
pay the costs of the drug or alcohol testing ordered pursuant to this
section. As used in this section, "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).
   (b) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.

3042.  (a) If a child is of sufficient age and capacity to reason so
as to form an intelligent preference as to custody, the court shall
consider and give due weight to the wishes of the child in making an
order granting or modifying custody.
   (b) In addition to the requirements of subdivision (b) of Section
765 of the Evidence Code, the court shall control the examination of
the child witness so as to protect the best interests of the child.
The court may preclude the calling of the child as a witness where
the best interests of the child so dictate and may provide
alternative means of obtaining information regarding the child's
preferences.

3043.  In determining the person or persons to whom custody should
be granted under paragraph (2) or (3) of subdivision (a) of Section
3040, the court shall consider and give due weight to the nomination
of a guardian of the person of the child by a parent under Article 1
(commencing with Section 1500) of Chapter 1 of Part 2 of Division 4
of the Probate Code.

3044.  (a) Upon a finding by the court that a party seeking custody
of a child has perpetrated domestic violence against the other party
seeking custody of the child or against the child or the child's
siblings within the previous five years, there is a rebuttable
presumption that an award of sole or joint physical or legal custody
of a child to a person who has perpetrated domestic violence is
detrimental to the best interest of the child, pursuant to Section
3011. This presumption may only be rebutted by a preponderance of the
evidence.
   (b) In determining whether the presumption set forth in
subdivision (a) has been overcome, the court shall consider all of
the following factors:
   (1) Whether the perpetrator of domestic violence has demonstrated
that giving sole or joint physical or legal custody of a child to the
perpetrator is in the best interest of the child. In determining the
best interest of the child, the preference for frequent and
continuing contact with both parents, as set forth in subdivision (b)
of Section 3020, or with the noncustodial parent, as set forth in
paragraph (1) of subdivision (a) of Section 3040, may not be used to
rebut the presumption, in whole or in part.
   (2) Whether the perpetrator has successfully completed a batterer'
s treatment program that meets the criteria outlined in subdivision
(c) of Section 1203.097 of the Penal Code.
   (3) Whether the perpetrator has successfully completed a program
of alcohol or drug abuse counseling if the court determines that
counseling is appropriate.
   (4) Whether the perpetrator has successfully completed a parenting
class if the court determines the class to be appropriate.
   (5) Whether the perpetrator is on probation or parole, and whether
he or she has complied with the terms and conditions of probation or
parole.
   (6) Whether the perpetrator is restrained by a protective order or
restraining order, and whether he or she has complied with its terms
and conditions.
   (7) Whether the perpetrator of domestic violence has committed any
further acts of domestic violence.
   (c) For purposes of this section, a person has "perpetrated
domestic violence" when he or she is found by the court to have
intentionally or recklessly caused or attempted to cause bodily
injury, or sexual assault, or to have placed a person in reasonable
apprehension of imminent serious bodily injury to that person or to
another, or to have engaged in any behavior involving, but not
limited to, threatening, striking, harassing, destroying personal
property or disturbing the peace of another, for which a court may
issue an ex parte order pursuant to Section 6320 to protect the other
party seeking custody of the child or to protect the child and the
child's siblings.
   (d) (1) For purposes of this section, the requirement of a finding
by the court shall be satisfied by, among other things, and not
limited to, evidence that a party seeking custody has been convicted
within the previous five years, after a trial or a plea of guilty or
no contest, of any crime against the other party that comes within
the definition of domestic violence contained in Section 6211 and of
abuse contained in Section 6203, including, but not limited to, a
crime described in subdivision (e) of Section 243 of, or Section 261,
262, 273.5, 422, or 646.9 of, the Penal Code.
   (2) The requirement of a finding by the court shall also be
satisfied if any court, whether that court hears or has heard the
child custody proceedings or not, has made a finding pursuant to
subdivision (a) based on conduct occurring within the previous five
years.
   (e) When a court makes a finding that a party has perpetrated
domestic violence, the court may not base its findings solely on
conclusions reached by a child custody evaluator or on the
recommendation of the Family Court Services staff, but shall consider
any relevant, admissible evidence submitted by the parties.
   (f) In any custody or restraining order proceeding in which a
party has alleged that the other party has perpetrated domestic
violence in accordance with the terms of this section, the court
shall inform the parties of the existence of this section and shall
give them a copy of this section prior to any custody mediation in
the case.

3046.  (a) If a party is absent or relocates from the family
residence, the court shall not consider the absence or relocation as
a factor in determining custody or visitation in either of the
following circumstances:
   (1) The absence or relocation is of short duration and the court
finds that, during the period of absence or relocation, the party has
demonstrated an interest in maintaining custody or visitation, the
party maintains, or makes reasonable efforts to maintain, regular
contact with the child, and the party's behavior demonstrates no
intent to abandon the child.
   (2) The party is absent or relocates because of an act or acts of
actual or threatened domestic or family violence by the other party.
   (b) The court may consider attempts by one party to interfere with
the other party's regular contact with the child in determining if
the party has satisfied the requirements of subdivision (a).
   (c)  This section does not apply to either of the following:
   (1)  A party against whom a protective or restraining order has
been issued excluding the party from the dwelling of the other party
or the child, or otherwise enjoining the party from assault or
harassment against the other party or the child, including, but not
limited to, orders issued under Part 4 (commencing with Section 6300)
of Division 10, orders preventing civil harassment or workplace
violence issued pursuant to Section 527.6 or 527.8 of the Code of
Civil Procedure, and criminal protective orders issued pursuant to
Section 136.2 of the Penal Code.
   (2) A party who abandons a child as provided in Section 7822.

3047.  A party's absence, relocation, or failure to comply with
custody and visitation orders shall not, by itself, be sufficient to
justify a modification of a custody or visitation order if the reason
for the absence, relocation, or failure to comply is the party's
activation to military service and deployment out of state.

3048.  (a) Notwithstanding any other provision of law, in any
proceeding to determine child custody or visitation with a child,
every custody or visitation order shall contain all of the following:
   (1) The basis for the court's exercise of jurisdiction.
   (2) The manner in which notice and opportunity to be heard were
given.
   (3) A clear description of the custody and visitation rights of
each party.
   (4) A provision stating that a violation of the order may subject
the party in violation to civil or criminal penalties, or both.
   (5) Identification of the country of habitual residence of the
child or children.
   (b) (1) In cases in which the court becomes aware of facts which
may indicate that there is a risk of abduction of a child, the court
shall, either on its own motion or at the request of a party,
determine whether measures are needed to prevent the abduction of the
child by one parent. To make that determination, the court shall
consider the risk of abduction of the child, obstacles to location,
recovery, and return if the child is abducted, and potential harm to
the child if he or she is abducted. To determine whether there is a
risk of abduction, the court shall consider the following factors:
   (A) Whether a party has previously taken, enticed away, kept,
withheld, or concealed a child in violation of the right of custody
or of visitation of a person.
   (B) Whether a party has previously threatened to take, entice
away, keep, withhold, or conceal a child in violation of the right of
custody or of visitation of a person.
   (C) Whether a party lacks strong ties to this state.
   (D) Whether a party has strong familial, emotional, or cultural
ties to another state or country, including foreign citizenship. This
factor shall be considered only if evidence exists in support of
another factor specified in this section.
   (E) Whether a party has no financial reason to stay in this state,
including whether the party is unemployed, is able to work anywhere,
or is financially independent.
   (F) Whether a party has engaged in planning activities that would
facilitate the removal of a child from the state, including quitting
a job, selling his or her primary residence, terminating a lease,
closing a bank account, liquidating other assets, hiding or
destroying documents, applying for a passport, applying to obtain a
birth certificate or school or medical records, or purchasing
airplane or other travel tickets, with consideration given to whether
a party is carrying out a safety plan to flee from domestic
violence.
   (G) Whether a party has a history of a lack of parental
cooperation or child abuse, or there is substantiated evidence that a
party has perpetrated domestic violence.
   (H) Whether a party has a criminal record.
   (2) If the court makes a finding that there is a need for
preventative measures after considering the factors listed in
paragraph (1), the court shall consider taking one or more of the
following measures to prevent the abduction of the child:
   (A) Ordering supervised visitation.
   (B) Requiring a parent to post a bond in an amount sufficient to
serve as a financial deterrent to abduction, the proceeds of which
may be used to offset the cost of recovery of the child in the event
there is an abduction.
   (C) Restricting the right of the custodial or noncustodial parent
to remove the child from the county, the state, or the country.
   (D) Restricting the right of the custodial parent to relocate with
the child, unless the custodial parent provides advance notice to,
and obtains the written agreement of, the noncustodial parent, or
obtains the approval of the court, before relocating with the child.
   (E) Requiring the surrender of passports and other travel
documents.
   (F) Prohibiting a parent from applying for a new or replacement
passport for the child.
   (G) Requiring a parent to notify a relevant foreign consulate or
embassy of passport restrictions and to provide the court with proof
of that notification.
   (H) Requiring a party to register a California order in another
state as a prerequisite to allowing a child to travel to that state
for visits, or to obtain an order from another country containing
terms identical to the custody and visitation order issued in the
United States (recognizing that these orders may be modified or
enforced pursuant to the laws of the other country), as a
prerequisite to allowing a child to travel to that county for visits.
   (I) Obtaining assurances that a party will return from foreign
visits by requiring the traveling parent to provide the court or the
other parent or guardian with any of the following:
   (i) The travel itinerary of the child.
   (ii) Copies of round trip airline tickets.
   (iii) A list of addresses and telephone numbers where the child
can be reached at all times.
   (iv) An open airline ticket for the left-behind parent in case the
child is not returned.
   (J) Including provisions in the custody order to facilitate use of
the Uniform Child Custody Jurisdiction and Enforcement Act (Part 3
(commencing with Section 3400)) and the Hague Convention on the Civil
Aspects of International Child Abduction (implemented pursuant to 42
U.S.C. Sec. 11601 et seq.), such as identifying California as the
home state of the child or otherwise defining the basis for the
California court's exercise of jurisdiction under Part 3 (commencing
with Section 3400), identifying the United States as the country of
habitual residence of the child pursuant to the Hague Convention,
defining custody rights pursuant to the Hague Convention, obtaining
the express agreement of the parents that the United States is the
country of habitual residence of the child, or that California or the
United States is the most appropriate forum for addressing custody
and visitation orders.
   (K) Authorizing the assistance of law enforcement.
   (3) If the court imposes any or all of the conditions listed in
paragraph (2), those conditions shall be specifically noted on the
minute order of the court proceedings.
   (4) If the court determines there is a risk of abduction that is
sufficient to warrant the application of one or more of the
prevention measures authorized by this section, the court shall
inform the parties of the telephone number and address of the Child
Abduction Unit in the office of the district attorney in the county
where the custody or visitation order is being entered.
   (c) The Judicial Council shall make the changes to its child
custody order forms that are necessary for the implementation of
subdivision (b). This subdivision shall become operative on July 1,
2003.
   (d) Nothing in this section affects the applicability of Section
278.7 of the Penal Code.



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