How Does the Court Make Custody Orders?

It is doubtful that any two words mean as many different things to as many different people as the words ‘joint custody.’
— In re Marriage of Birnbaum
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    Series: What is the Difference Between Legal Custody, Physical Custody, and Parenting Time?

Series: What is the Difference Between Legal Custody, Physical Custody, and Parenting Time?

How Does the Court Make Custody Orders?

The court will only make custody orders if parents cannot agree to a parenting plan on their own.  Both Santa Clara and San Mateo County provide ample opportunity for you and your co-parent to reach a settlement.

If you cannot reach an agreement, the court will make custody decisions based on what is best for the children involved.  There is no legal preference for a fifty-fifty custody schedule, or joint custody, or any other type of plan.  The court will encourage frequent and continuing contact with both parents, assuming there are no safety issues.  It is important to understand that the court will tackle the issue from the children’s perspective, and not what feels most fair to either parent.

What Does the Court Consider to Be in a Child’s Best Interest?

Family law judges have a lot of discretion to make orders.  The court will consider all the facts and circumstances of a family’s situation.  There are several guiding presumptions and laws:

  • The health, safety, and welfare of children is the court’s primary concern.
  • It is generally best for children to have frequent and continuing contact with both parents after separation.
  • The court will not make custody decisions based on a parent’s gender.  (There is no legal preference in favor of mothers.) 
  • The court will consider history of a parent’s abuse of a child, the other parent, or other family members.
  • The court will consider the history of a parent’s substance abuse.
  • The court will not consider a party’s immigration status.

In general, the court will emphasize the children’s stability and routine.  This is not always possible, however, since what worked in a two-person household may not work in two single-parent households. 

Frequent and Continuing Contact with Both Parents

California believes that children should have relationships with both of their parents.  In making custody orders, the court will consider which parent is more likely to allow visits and phone calls with the other parent.


If the court needs to make a custody order in your case because you were unable to reach settlement with your co-parent, the judge will consider what is in the best interests of the children.  An attorney can help you present your side of the story in your court papers and at the hearing. 

At Krueger Family Law, we understand that no two families are the same.  We take a flexible approach to reach good solutions for our clients and their families. 

If you have questions, you can contact Krueger Family Law to schedule a consultation.