Child custody mental illness and move-aways

Child Custody:

Family Code § 3040(a):

Generally, the standard that the Court uses to determine custody orders is the “best interest of the child” standard. Custody is granted in the following order of preference:

To both parents jointly 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. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

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.

Mental illness and Custody:

Family Code § 3040(d):

Commencing January 1, 2024, if a court finds that the effects of a parent's, legal guardian's, or relative's history of or current mental illness are a factor in determining the best interest of the child, the court shall do both of the following:

(A) Provide the parent, legal guardian, or relative with a list of local resources for mental health treatment.

(B) State its reasons for the finding in writing or on the record.

This addition does not relieve a court from ensuring that the health, safety, and welfare of the child is the court's primary concern in determining the best interests of children when making any order regarding the physical or legal custody, or visitation, of the child.

Move Aways and Custody:

The California Supreme Court in In re Marriage of Burgess concluded that an initial judicial custody determination based on the "best interest" of minor children, a parent seeking to relocate does not bear a burden of establishing that the move is "necessary" as a condition of custody. Similarly, after a judicial custody order is in place, a custodial parent seeking to relocate bears no burden of establishing that it is "necessary" to do so. Instead, he or she "has the right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child." (Fam. Code, § 7501.)((1996) 13 Cal.4th 25)

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*The information provided above is for informational purposes only. It is not legal advice and should not be interpreted as legal advice.