COVID-19 Update: How We Are Serving and Protecting Our Clients

Published on:

Child Custody— California Courts Consideration in Making Custody Awards —Part 3: Contact With Parents and Siblings, and Use of Controlled Substances or Alcohol

This is the third entry in my blog series “California Court’s Consideration in Making Custody Awards.”  As stated in Parts 1 and 2, (links) I am writing this series due to the number of emails and calls I receive in my California Family Law Practice on a weekly basis from California parents regarding custody cases. It’s my hope to help shed a little light on this issue so that my reader is better able to navigate his/her way in the legal system regarding their custody case. This blog focuses on issues relating to Contact With Parents and Siblings, and Use of Controlled Substances or Alcohol. These issues, and many others, are factors a California family-law judge will look at when making a determining on custody.

First, issues relating to children include legal custody (link), physical custody (link), visitation (link) and guideline child support.  This is important to know and understand because a California family-law judge will examine these additional issues when rendering its court orders.


In the court making a determination on a child’s best interests, a California court must consider the nature and amount of a child’s contact with both parents, of course, taking into account any issues affecting the child’s health, safety and welfare.  Family Code section 3046 states that if a party is absent or relocates from the family residence, the court must not consider the absence or relocation as a factor in determining custody or visitation when either of the following exists:

  1. The absence or relocation is of a short duration and the court makes a finding that during the period (1) the party has demonstrated an interest in maintaining custody or visitation, or (2) the party has maintained or made reasonable efforts to maintain regular contact with the child, and (3) the party’s behavior has demonstrated no intent to abandon the child; or,
  1. The absence or relocation was because of an act or acts of actual or threatened domestic or family violence by the other parent;

California Family Code section 3046 relating to when absence or relocating are not considered factors in determining custody or visitation) does not apply and thus a California court must consider a party’s absence or relocation in cases involving:

  1. A party against whom a protective or restraining order has been issued—excluding the party from the home of the other party or child, or otherwise “enjoining” the party from assault or harassment against the other party or the child; or,
  1. A party who abandons a child as provided in Family Code 7822 (abandoned child on grounds for action to have child declared free from parental custody and control).


In the case Marriage of Williams, an appeals court addressed a California family law trial court awarding custody of two of the couple’s four children to one parent and two to the other parent. After commenting that “At a minimum the children have a right to the society and companionship of their siblings,” the appellate court reversed the trial court’s decision and instructed the trial court to order separation of the siblings only on a legal showing of “compelling circumstances, articulated in a manner which permits meaningful appellate review.” What this means in a nutshell is this: absent “compelling circumstances,” children are not to be divided the same way the forks and knives are divided in a divorce.  Thus, in situations where there is more than one child, absent compelling circumstances, the courts will keep the children together.


In determining the child’s best interest, the court must consider the habitual or continual use of controlled substances, or the habitual or continual use of alcohol by either parent. Before considering such allegations, however the court may require independent corroboration such as police reports from law enforcement agencies, social welfare agencies, third party eye-witnesses and/or medical facilities.

In determining California Family Code 3011(d) to permit court-compelled drug testing in child custody disputes, would present serious constitutional concerns and thus the court in family law matters lack statutory authority to order a parent to submit to such testing.  Notwithstanding, a parent can voluntary agree to undergo such testing.

When allegations about a parent under Family Code section 3011(d) have been brought to the court’s attention in a custody proceeding, and the court awards sole or joint custody to that parent, the court must state its reason in writing or on the record, and must ensure that any order regarding custody or visitation is specific as to time, day place and manner of transfer of a child as set forth in California Family Code section 6323(c).  These additional requirements do not apply in cases where the parties stipulate to alternative orders in writing or on the record regarding custody or visitation. (Family Code section 3011(e)(2).

In part 4 of this series, I will discuss issues relating to a parent’s gender, a child’s preference as they relate to the best interests of the child standard. As you hopefully see by now, the issue of custody is both vast and complex.

Ms. Garrett is a qualified and experienced California family-law attorney. Click here  if you wish to discuss your California custody matter with Ms. Garrett.

Child Custody–California Courts Consideration in Making Custody Awards–All Blogs

Part 1: “Best Interest of the Child” Standard— Child’s Health, Safety & Welfare

Part 2: “Best Interest of the Child” Standard—Part 2: Abuse & Domestic Violence 

Part 3: “Part 3: Contact With Parents and Siblings, and Use of Controlled Substances or Alcohol”

Part 4:”Parents Gender”

Part 5: “A Child’s Preference

Part 6: Crimes of Parents: Parent is a Registered Sex Offender (or Person Convicted of Child Abuse) or Rapist”

Part 7: “Existing Restraining Orders” 

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your  matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

© 2013 California Family Law and  Copyright Protected. All Rights Reserved.

Contact Information