Child Custody: Placement with the most stable parent is the courts primary goal

The California family law courts are required to support the children’s best interests in the determination of a parenting plan. In pursuit of that goal, the custodial outcome will be driven by a determination of a number of factors heavily weighted towards the child’s placement in the most stable and child centered household.

To exemplify this policy, a review of an unpublished court decision would best illustrate California child custody standards. While an unpublished decision cannot be quoted as legal precedent, this case provides meaningful guidance on the thinking behind the courts standards for child placement.

Irmo R. & M. — Unpublished opinion of District 4, Division 1 (Filed October 29, 2012)

This case held that the trial evidence supported the conclusion that father maintained a more stable household and, therefore, was more likely to ensure his son’s academic progress warranting a new custodial order placing the child with father when father moved to New Jersey.

The facts are as follows: In 2008, Mother and Father agreed to joint legal and physical custody of their son N who has a half-brother J, who is 11-years his junior. Under their agreement, the parties each had equal timeshares of their son. In 2010, Father moved to modify the 50-50 custody arrangement because of his concern with Mother’s stability, her use of prescription pain medication, her “chaotic” home environment, and her inability to ensure that N was attending school.

Based upon a finding Mother had been unable to ensure N regularly attended school, the trial court accepted most of the mediator’s recommendations and awarded Father custody during the school week with Mother having visitations on certain weekends. Father’s custody share was 78% under these temporary orders.

In January 2011, Father remarried and in March 2011, moved to modify the custody arrangements to reflect his decision to move placement in the most stable and child centered to New Jersey. Father cited a job change and the fact his new wife lives in New Jersey as reasons for the move.

Father described his new living arrangements and said he was committed to ensuring N would return frequently to California during school breaks and summer vacations. Father again expressed concern about Mother’s ability to care for N given her frequent use of pain medication, her inability to ensure that N attended school, and the lack of stability in her household.

A custody mediator produced a report recommending that the court award Mother primary physical custody of N when Father moved to New Jersey because “the child’s primary attachment figure appears to be his mother. Further, [N] is very close with his very young brother, whom he described as his best friend. N does not feel emotionally connected to his father.” At the hearing, the mediator said N expressed a preference to live with his mother although she did not independently verify N’s statements.

Mother testified that she is in substantial and constant pain and that she takes numerous pain medications including the opiate Dilaudid. She said she has “severe migraines” about five days a week and could not walk well and the pain in her hands prevented writing. She said, “There are some bone marrow problems that I’ve had . . . cortisone injections, and I’m scheduled to have more injections.” But she said she could care for N with the help of others. She said she would enroll N at the High School preferred by N, but acknowledged she does not live within the school’s boundaries. She said she lives part time in with her parents who are both sick.

Father presented school attendance records showing N frequently missed school when he was in Mother’s care, and testified that Mother frequently seems “groggy” and medicated. Father acknowledged some problems interacting with N, admitted he was not a perfect parent, but said he has completed a parenting/anger management class and has since learned better ways of relating to and interacting with his teenage son. Father emphasized the evidence showing that N’s role in Mother’s household includes taking care of Mother and his little brother.

The trial court found Father was the primary parent, would insure N progressed academically and maintained a more stable household. The trial court compared this to the less favorable circumstances in Mother’s household and the physical challenges she was required to deal with as a result of her poor health. Based upon its findings, the trial court ruled N would live with Father in New Jersey, reserving a generous visitation schedule for Mother, including six weeks during the summer and various holidays. Mother appealed and the appellate court upheld the trial courts determination.

The move away principles embodied in the appellate court decision were as follows:
“In an initial custody determination, the trial court has ‘the widest discretion to choose a parenting plan that is in the best interest[s] of the child.’ … FC § 3011 lists specific factors, ‘among others,’ that the trial court must consider in determining the ‘best interest[s]’ of the child in a proceeding to determine custody and visitation: ‘(a) The health, safety, and welfare of the child. [¶] (b) Any history of abuse by one parent against the child or against the other parent. . . . [¶] (c) The nature and amount of contact with both parents.’ ” (Irmo Burgess (1996) 13 Cal.4th 25, 31-32; Mark T. v. Jamie Z. (2011) 194 Cal.App.4th 1115, 1125.) A parent seeking to change a temporary custody order need not prove changed circumstances and there is no presumption that the existing custody arrangement is the appropriate one. (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 14-15; see Irmo LaMusga (2004) 32 Cal.4th 1072, 1078.)

In applying the best interests analysis in a proposed move-away situation, the trial court must consider “the children’s interest in stability and continuity in the custodial arrangement; the distance of the move; the age of the children; the children’s relationship with both parents; the relationship between the parents including, but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests; the wishes of the children if they are mature enough for such an inquiry to be appropriate; the reasons for the proposed move; and the extent to which the parents currently are sharing custody.” (LaMusga at p. 1101.)

The parent seeking to move with the child “bears no burden of establishing that the move is ‘necessary,’ ” but must show the relocation is in the ” ‘best interest’ ” of the minor child. (Burgess at p. 34.) Moreover, the court must decide the custody issue premised on the assumption that the parent will move away; the issue is not whether the parent should or may be permitted to move away, but ” ‘what arrangement for custody should be made’ ” when the parent moves. (Mark T. at p. 1126; F.T. v. L.J. at p. 22.)

In applying these principles, the California Appellate court rejected each of the contentions offered by Mother about how the trial court failed properly to consider the factors that must guide the construction of a new parenting plan when one parent intends to move away. The Appellate court detailed the various ways the trial court considered each of the well-established statutory and decisional law principles.

For example, Mother contended the trial court failed to place sufficient weight on the relationship between N and his half-brother J, citing Irmo Williams (2001) 88 Cal.App.4th 808, 811, 812-814 [a showing of “compelling circumstances is required to divide four children among their parents].) The CA acknowledged the relevance of a sibling, half-sibling relationship in the context of assessing a child’s best interests. But here, the CA detailed how the trial court in fact assessed this element of the issue and approved its conclusion. “On this record, the court had a reasonable basis to conclude the relationship between the siblings did not establish that N’s best interest would be served by placing N in Mother’s custody.”

The Appellate Court concluded the evidence supported the finding that Father is a responsible, caring parent who is capable of ensuring that N attends and successfully completes high school. Further, the evidence provided at trial showed Father would provide a more stable living environment and the appropriate guidance for N to mature into a responsible adult. The evidence also supported the trial court’s findings that Mother’s living situation appeared was uncertain and unstable. A finding that she appeared to be medicated throughout these proceedings” supported a conclusion that her use of narcotics precluded her from “being able to carefully monitor” N’s behavior and ensure his academic progress. The findings and orders of the trial court were a proper exercise of the court’s discretion.


The Appellate Court will rarely overturn a lower court decision where the judges discretion on weighing factual evidence is key to formulating the outcome. Unless the lower court clearly fails to follow a specific policy and commits what is referred to as legal error, the higher court will not reevaluate the courts reasoning.

Here are some factors to consider that might have changed or influenced the lower courts outcome:

Mother demonstrated to the trial judge she had her pain management under control and was responsive to the needs of maintaining regular school attendance for N.

N’s desire to remain with mother was given greater weight due to his maturity and close peer and school connections and mother lived in N’s California school district.

A full child custody evaluation rather than a review by Family Court Services strongly supported N remaining with his mother.

The holding in this unpublished case reinforces the notion that, in each parenting scenario, a judge must consider factors unique to that particular family system in designing a parenting plan to reflect adherence to the “best interests of the child” policy.

Contested child custody cases are one of the most complex and emotionally challenging areas of family law. The professional assistance of an experienced family law attorney can be of great value in the pursuit of protecting you and your child’s legal rights.

11 Replies to “Child Custody: Placement with the most stable parent is the courts primary goal”

  1. At what age does a child have to be before a father and ask for 50/50 custody? The mother has full custody now due to the father being in the Navy. The father was the one that wanted the divorce and never wanted the child. Now as the child gets older the father sees what he is missing out on. I just need to know that age my grandson will be forced to live within day.

    Thank you,


    1. Any age.

      We know of a judge who have a 11 week old baby 50/50 with both parents. 4 days with one parent, then 4 days with the other

      1. Each situation is so unique. When you’re dealing with very young children, there’s a lot more flexibility on what can be achieved if there’s a close geographical proximity of both parents.

    2. Parenting time with the parents is always designed by the California court with a child’s best interests in mind. If the child is in their early teens, they can be considered as to any reasonable wishes they may have concerning parenting timeshare.

  2. Thanks for composing Child Custody: Placement with the most stable parent is the courts primary goal – Child Custody in California, really like it.

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  4. Do you have any articles pertaining to parents living in different states before the child was born. My daughter’s father decided he wanted to be a part of her life when she was over 18 months old. I live in California, and he in Colorado. I just don’t know what a parenting plan would even look like for this kind of situation. I believe 2 is too young to be traveling back and forth so frequently to other states when finances are tight.

    1. UCCJEA jurisdiction would control this situation. Please get custody orders where the child resides as a starting point.

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