Article provided by the Dominion Law Group, L.L.P. Please visit our Web site at www.dominionlaw.com.

Most parents are unaware of the legal standards used by California courts to make decisions regarding the custody of their children. Many parents may believe that their wishes are the predominate concern or that so long as both parents have come to an agreement on custody then the court must accept that agreement. Although these beliefs may be reasonable, this is not the law in California.

In California, as in most states, the primary consideration above all others in a child custody hearing is the best interests of the children. In effect, this means that courts, not parents, have the final word about what happens to children in custody disputes. A recent California appellate court case holding that parents do not have an absolute constitutional right to home-school their children illustrates the extent of this power.

Jonathan L. v. Superior Court

In Jonathan L. v. Superior Court, the court was asked to determine whether three children would be allowed to live with their parents in light of allegations of physical and sexual abuse at the hands of their father. Two of the children, both of whom had been home-schooled by their mother, were allowed to remain in the home. The state requested that the children be required to attend public school, arguing that they would have closer contact with mandatory reporters who could alert authorities in the event of suspected abuse. The court rejected this argument, holding that parents have a federal constitutional right to home-school their children.

On appeal, the court held that parents' right to direct the education of their children is not absolute: if the state has a compelling reason - such as protecting the safety and well-being of the children - it may order that they attend public school without violating the parents' constitutional rights.

Best Interests of the Child

Even though the court's ruling in Jonathan L. was limited to situations involving potentially unfit parents, the case still underscores the court's power to make decisions in place of the parents when children's safety and well-being are threatened.

In child custody proceedings, the court has broad discretion to create a custody plan so long as the plan serves the best interests of the children. There is no exact legal formula that a court must use in deciding what is or is not in a child's best interests. The California statutes, however, set out four factors the court is required to consider:

• The health, safety and welfare of the child
• The history of any abuse between the parents, the parent and a child or the parent and another significant other
• The nature and amount of contact the child has with both parents
• Any allegations of alcohol and/or drug use by either parent

In addition to these factors, the court also must consider any other factors that have a bearing on the best interests of the child. In past decisions, courts have considered which parent will best support the child's intellectual growth, whether the child shares more common experiences with one parent, which parent is most likely to maintain the child's lifestyle and whether siblings will be separated as a result of the custody arrangement.

While the parents' desires generally are not important in custody determinations, the child's may be. If the child is of an appropriate age and maturity level that he or she can communicate an intelligent preference for one parent over the other, the court may consider the child's preference as one factor in its decision.

Additionally, if the parents have agreed to their own custody arrangement, the court normally will uphold it, so long as it is reasonable and meets the child's best interests. However, the court is not required to uphold the agreement and has the option of substituting it with one it believes better meets the child's needs.

Seek Experienced Advice

If you are facing a child custody proceeding in California, contact an experienced family law attorney. Only an experienced attorney can give you the information you need to protect your rights.