Determining the Best Interests of the Child - California

Date: September 2024

Guiding Principles

Citation: Welf. & Inst. Code § 16000

The legislature intends to preserve and strengthen a child's family ties whenever possible, removing the child from the custody of their parents only when necessary for their welfare or the safety and protection of the public. If a child is removed from the physical custody of their parents, preferential consideration shall be given whenever possible to the placement of the child with a relative, as required by law. If the child is removed from their own family, it is the purpose of this chapter to secure as nearly as possible for the child the custody, care, and discipline equivalent to that which should have been given to the child by their parents. It is further the intent of the legislature to reaffirm its commitment to children who are in out-of-home placement to live in the least restrictive family setting, promoting normal childhood experiences that are suited to meet their individual needs and to live as close to their family as possible. Family reunification services shall be provided for expeditious reunification of the child with their family, as required by law. If reunification is not possible or likely, a permanent alternative shall be developed.

Best Interests Factors

Citation: Fam. Code § 3020

The legislature finds and declares that it is the public policy of this State to ensure the following:

  • That the health, safety, and welfare of children shall be the court's primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children
  • That children have the right to be safe and free from abuse and that the perpetration of child abuse or domestic violence in a household in which a child resides is detrimental to the health, safety, and welfare of the child
  • That children have frequent and continuing contact with both parents, except when the contact would not be in the best interests of the child
  • That a court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members
  • That the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative is not considered in determining the best interests of the child

Other Considerations

Citation: Wel. & Inst. Code § 16001.9; Fam. Code § 175

All children placed in foster care have the following rights:

  • To live in a safe, healthy, and comfortable home where they are treated with respect. If the child is an Indian child, to live in a home that upholds the prevailing social and cultural standards of the child's Indian community, including, but not limited to, family, social, and political ties.
  • To visit and contact siblings, family members, and relatives privately, unless prohibited by court order, and to ask the court for visitation with the child's siblings.
  • To be represented by an attorney in juvenile court; to have an attorney appointed to advise the court of the child's wishes, to advocate for the child's protection, safety, and well-being, and to investigate and report to the court on legal interests beyond the scope of the juvenile proceeding; to speak to the attorney confidentially; and to request a hearing if the child feels their appointed counsel is not acting in their best interests or adequately representing their legal interests.

The legislature finds and declares that there is no resource that is more vital to the continued existence and integrity of recognized Indian Tribes than their children, and the State of California has an interest in protecting Indian children who are members of or are eligible for membership in an Indian Tribe. The State is committed to protecting the essential Tribal relations and best interest of an Indian child by promoting practices, in accordance with the Indian Child Welfare Act (25 U.S.C., § 1901, et seq.) and other applicable law, designed to prevent the child's involuntary out-of-home placement and, whenever the placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child's Tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child's Tribe and Tribal community.

In all Indian child custody proceedings, the court shall strive to promote the stability and security of Indian Tribes and families, comply with the Federal Indian Child Welfare Act, and seek to protect the best interests of the child. Whenever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with the Indian Child Welfare Act.