134 Children’s Legal Rights Journal [Vol. 37: 1 2017]
with both parents, and the habitual or continual illegal use of controlled substances. 41 Though
many states, including California, statutorily forbid any presumption for sole or joint custody, 42
the courts cling tightly to the de facto43 presumption that joint custody is in the best interest of
the minor child. 44
IV. BEST INTEREST OF THE CHILD STANDARD
The best interest of the child standard is intended “to maximize the child’s opportunity to
develop into a stable, well-adjusted adult.” 45 It requires the contemplation of all relevant factors46
and considers custody by looking at the totality of the circumstances. 47 Therefore, one factor
alone does not determine custody. 48
The child’s health, safety, and welfare are the most important considerations. 49 The
standard encompasses very expansive and elusive considerations. The quality and nature of the
home, incorporation of the child into the home, type of guidance provided by the custodial
parent, and the ability of each parent to cater to the child’s emotional and intellectual needs are
all weighed. 50 The court also considers any history of familial abuse by a parent and the quality
and quantity of contact the minor child has had with each of the parents. 51 Furthermore, the court
41 CAL. FAM. CODE § 3011 (West, Westlaw through 2016 Legis. Sess.).
42 Id. § 3040.
43 MERRIAM-WEBSTER, supra note 8.
44 See 33 Cal. Jur. 3d Fam. L. § 974; CAL. FAM. CODE § 3020(b) (West 2013).
45 Keith R. v. Superior Court, 96 Cal. Rptr. 3d 298, 301 (Ct. App. 2009).
46 See ELROD, supra note 12, at § 17: 6.
47 See id. at § 1: 7.
48 See id. at § 17: 6.
49 CAL. FAM. CODE § 3020(a) (West, Westlaw through 2016 Legis. Sess.).
50 See ELROD, supra note 12, at § 17: 6; Family Law Act, 1975, Sect. (Cth) s 65DAA( 3), (Austl.), available at
51 CAL. FAM. CODE § 3011 (West, Westlaw through 2016 Legis. Sess.); See also CAL. FAM. CODE § 6203 (West,
Westlaw through 2016 Legis. Sess.).