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Gender or Sexual Orientation in Determining Custody in California

California’s Family Code governs the determination of child custody and visitation in contested proceedings. The law requires the court, in determining child custody, to determine what is in the best interests of the child.  The code includes a list of factors in how to determine this, including the nature and amount of contact with both parents.  The court’s primary concern must be to ensure the health, safety, and welfare of the child. The code also provides that custody should be granted in a specified order of preference, according to the best interests of the child. The code prohibits the court, in granting custody, from preferring a parent as custodian because of their sex.

In 2019, State Senate Bill 495 (SB495) was enacted and went into effect on January 1, 2020.The law now prohibits “…the court from considering the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of a child for the purpose of granting custody, and would make related findings…”

Section 3011 of the Family Code directs how a court determines custody and visitation of a child.  The law specifically states that must determine what is in the best interests of the child when making its decision.  Section 3011 also provides the court shall consider the health and safety of the child; whether a person seeking custody has a history of abuse against the child, the other parent, current or former spouse; the nature and amount of contact with each parent; and the abuse of alcohol and/or drugs.

Effective January 1, 2020, Section 3011 has been amended to include Subsection (b): “(b) Notwithstanding subdivision (a), the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.”

Family Code Section 3020 states California’s public policy that it is in the best interests of a child (barring certain conditions) to have continuing contact with both parents and that a child has the right to be safe and free from abuse.  Effective January 1, 2020, the section also includes subsection (d):  “…(d) The Legislature finds and declares that it is the public policy of this state to ensure 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.”

Family Code Section 3040 provides the order of how custody should be granted (from joint physical and legal) to sole physical and legal custody).  Effective January 1, 2020, this section is amended to include subsection (c): “(c) The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child under subdivision (a)…”

Section 3040 was also amended, effective January 1, 2020, to prevent discrimination based on immigration status: “…(b) The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).”

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