California Family Code § 3040 – Order of Preference in Child Custody

Plain-Language Summary

California Family Code § 3040 sets out a hierarchy for who should get custody of a child after parents separate. In simple terms, the court starts by considering the parents first. It may award custody jointly to both parents or to either parent alone (section 3040(a)(1)). In deciding this, the court must look at which parent will support the child having “frequent and continuing” contact with the other parent. If neither parent is suitable or available, the next preference (§ 3040(a)(2)) is for whoever has been caring for the child in a stable home (for example, a grandparent or other relative who has provided a “wholesome and stable environment”). If even that option is not appropriate, then custody can go to any other suitable person (§ 3040(a)(3)).

Importantly, the law also makes clear that there is no fixed bias toward any particular arrangement. Section 3040(b) expressly says it “establishes neither a preference nor a presumption” for joint or sole custody – the judge has wide discretion to pick whatever plan best serves the child’s interest. The statute also forbids considering a parent’s gender, gender identity, sexual orientation or immigration status when making custody decisions (subsections (c) and (b)). In practice, 3040 means courts must tailor custody orders to each case, always focusing on the child’s best interests and ensuring both parents (if possible) remain important in the child’s life.

Examples of §3040 in Practice

Typical divorce with both parents fit: When a mother and father end their marriage but both are loving and responsible, §3040(a)(1) tells the court to place them first. In practice, this often results in joint or shared custody. For example, a court might award both parents legal custody and a parenting schedule (such as alternating weeks or ample visitation) while emphasizing that each parent should encourage regular time with the other parent.
Child with grandparents or other caregiver: If neither parent can currently care for the child, §3040(a)(2) comes into play. Suppose a child has been living happily with a grandparent for several years because the parents were unable to parent. The court may then award custody to the grandparent as the person providing a stable, wholesome home. For instance, a baby raised by a grandmother due to a parent’s incarceration might remain with her under the preference for a “stable environment.”
Custody to another suitable person: Section 3040(a)(3) covers all other situations. If no parent or relative is appropriate, the court looks for any other capable caregiver. For example, if a child has been under the care of a trusted family friend (or an aunt, uncle, step-parent, etc.) who can prove the child’s welfare is a priority, that person may receive custody. The guiding rule is the person must be “suitable and able to provide adequate and proper care and guidance.”

Key Court Decisions Interpreting §3040

In re Marriage of Burgess, 13 Cal.4th 25 (1996): The California Supreme Court stressed that §3040(b) gives judges the “widest discretion” in custody cases and imposes no default rule for joint versus sole custody. Burgess involved a custody decision after one parent wanted to relocate; the Court cited §3040(b) to uphold the trial court’s flexible approach. It reaffirmed that the court’s choice of parenting plan must be guided by the child’s best interest without any predetermined preference.
Lester v. Lennane, 84 Cal.App.4th 536 (2000): This appellate case emphasized that §3040(a)(1) forbids gender bias. The court noted that §3040(a)(1) “precludes the court from making a custody order based on preference of one gender over another.” In Lester, when allegations of judicial gender bias arose, the court held that custody determinations must focus on factors like which parent encourages contact with the other parent – not on whether the parent is mother or father.
Guardianship of Kaylee J., 55 Cal.App.4th 1425 (1997): In this guardianship dispute, the court quoted §3040(a) while choosing between the biological mother and the grandparents. The decision reiterated that if custody cannot remain with a parent, it should go to the caretaker providing a “wholesome and stable environment” (§3040(a)(2)). The court found that Kaylee’s grandmother had provided such stability and applied §3040’s preference rules to appoint the grandmother as guardian.
In re Marriage of Selzer, 29 Cal.App.4th 637 (1994): In this move-away case, the appellate court pointed out that §3040(b) allows broad discretion. The court affirmed a mother’s relocation with the children, citing §3040(b)’s “widest discretion” language. It stressed that the statute’s lack of strict formula meant the trial court could weigh all factors in the child’s best interest when allowing the move.
In re Marriage of Richardson, 102 Cal.App.4th 941 (2002): Here, the court again relied on §3040(b) in a move-away context. Richardson confirmed that for an initial custody decision, the court must use the “widest discretion” to craft a parenting plan in the child’s best interest. The case held that because the parents had not made a final custody plan, the trial court had to revisit custody under the standard best-interest framework rather than treating the earlier stipulation as final.

Full Text of California Family Code § 3040

(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

(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).

(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).

(d)(1) Commencing January 1, 2024, if a court finds that the effects of a parent’s, legal guardian’s, or relative’s history of or current mental illness are a factor in determining the best interest of the child under subdivision (a), the court shall do both of the following:

(A) Provide the parent, legal guardian, or relative with a list of local resources for mental health treatment.

(B) State its reasons for the finding in writing or on the record.

(d)(2) This subdivision does not relieve a court from ensuring that the health, safety, and welfare of the child is the court’s primary concern in determining the best interests of children when making any order regarding the physical or legal custody, or visitation, of the child.

(e) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child, consistent with this section.

(f) In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.

*Nothing on this page should be considered legal advice. This is simply a summary of information found on the Internet. Use at your own risk. This information has not been evaluated by an attorney, and it may be incorrect or obsolete due to changes in the law.