California
What does a California judge look at when deciding custody?
Quick answer
The child’s best interest. California law lists what the judge must consider: the child’s health, safety, and welfare; any history of abuse; the nature and amount of contact with both parents; and habitual drug or alcohol abuse. The judge also considers which parent is more likely to support the child’s contact with the other parent, and a parent found to have committed domestic violence in the past five years against the other parent, the child, or certain others faces a rebuttable presumption against getting custody.
Researched by Dan Martin, Legal Researcher · Published by Onbello Legal · Last updated October 2026
What the law says
Family Code section 3011(a): “In making a determination of the best interests of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant and consistent with Section 3020, consider all of the following:” “The health, safety, and welfare of the child”; a history of abuse by a parent against a child, the other parent, or certain others; “The nature and amount of contact with both parents, including as provided in Sections 3046 and 3100”; and “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.” Under section 3011(b), the court “shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.”
Section 3020(a) makes the child’s health, safety, and welfare “the court’s primary concern.” Section 3040(a)(1): 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 Sections 3011 and 3020.” Section 3040(e) sets “neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody.”
Section 3044(a): if the court finds a parent seeking custody committed domestic violence within the previous five years against the other party seeking custody, the child or the child’s siblings, or certain others, “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 Sections 3011 and 3020.” The current version of section 3044 took effect January 1, 2026.
What to do next
Write your declaration around these factors with specific dates and events, not labels. If your child is old enough to have a preference, section 3042 governs how the court hears it.
Last checked against the sources above on October 8, 2026.
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