My wife and I are divorcing. I believe that its in the childrens best interest that I am be granted primary physical custody.

What must I do to ensure that the courts grant me primary physical custody and allow my children and I the ability to reside at our current property. I have always been the parent to instill morals and ethics into my children. My wife’s family has a history of problems with the law and raising children. None of the children on her side of the family have graduated from high school or become productive citizens in their community. I do not want my children exposed to this environment if at all possible. Is there anything I can do to ensure I am able to continue to raise them?

Asked on June 29, 2009 under Family Law, California


M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

California courts make child custody decisions based on what is known as the "best interest" of the child if the parents can't come to an agreement. In deciding which parent should have primary custody, the court will consider these factors and others: which parent is more likely to allow the child frequent and continuing contact with the nonresidential parent; the relationship and history of contact between the parents and the child, the health, safety and welfare of the child; the mental and physical health of the parents, including any history of continual alcohol or drug usage;  if the child is intelligent, understanding and experienced enough to state who he/she wishes to live with, the court will sometimes ask, etc.   Who works and who can be home to care for them may also be considered.  

As for your property,  California is a "community property" state, which means that assets and debts acquired during your marriage will be divided equally when you divorce. If you want to stay in your home to raise your children you can indeed bring that up.  What you need is a good lawyer who can help you do what is best for your children. If it is possible that you and your wife agree on these issues rather than fight it out that is in the best interests of your children.  And remember: physical custody does not mean that your wife will give up joint custody of your children, which is a right to make life decisions on their behalf along with you.  

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