FC §3040 — Order of Preference for Custody; Frequent-and-Continuing-Contact Factor
Type: California Family Code
Summary
Establishes the statutory order of preference the court applies when awarding custody, and — most consequentially for this case — directs that, in awarding 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.” This is the so-called “friendly-parent” factor. The section explicitly disclaims any preference or presumption for or against joint legal, joint physical, or sole custody, leaving the court the widest discretion to fashion a parenting plan in the best interest of the child consistent with FC §§3011 and 3020. It also bars the use of a parent’s sex or immigration status as a custodial disqualifier.
When to use
Frame any motion that argues one parent is less able or willing to comply with court-ordered parenting time, phone access, or co-parenting communication around §3040(a)(1)‘s frequent-and-continuing-contact factor. Pair with FC §3011 (best-interests factors) and FC §3020 (public policy of frequent and continuing contact), and with FC §3027.5 (restoration of parenting time) when seeking remedial relief. This is the operative statute for arguing that a documented pattern of refusals, lockouts, school absences on custodial days, and unilateral schedule rewrites bears directly on which parent should be entrusted with custody going forward.
Section text (operative subdivisions)
(a) In awarding custody, the court shall consider all of the following:
(1) 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:
(A) 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, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the order.
(B) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.
(C) 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.
(2) The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under paragraph (1).
(3) Allegations that a parent is unable to care for a child due to a disability … shall not constitute a basis for denying or limiting custody or visitation …
(b) 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 and Sections 3011 and 3020.
Application to this case
The frequent-and-continuing-contact factor in §3040(a)(1)(A) is the doctrinal hook for arguing, at the 6/1 RFO and the 5/11 minor’s-counsel hearing, that Jennifer’s documented pattern of parenting-time refusals, phone-access cutoffs, and unilateral schedule rewrites — escalated to three sworn DA Visitation Violation Reports (VV-0043769, VV-0043923, VV-0043929) within 19 days — bears on which parent has demonstrated capacity to allow the children frequent and continuing contact with the other parent. Pair the §3040 argument with §3027.5 restoration relief and CCP §1218 contempt foundation.
Linked exhibits
Transclude of Exhibits-by-Statute.base