In family law, few principles are as widely misunderstood as the standard of a child’s best interest – even among many of my colleagues in the field. It is meant to serve as a North Star in custody cases, guiding judges toward decisions that protect a child’s emotional, physical and psychological wellbeing. But what happens when that altruistic intent is affected by the other side of the coin, parental rights?
The answer to this question is both uncomfortable and legally complex. In California, and many other jurisdictions, the legal system often prioritizes a parent’s right to maintain access to their child, even in instances where there are credible concerns for the child’s safety. The result is a legal paradox that’s challenging to navigate. Children may be required to spend time with a parent who has been accused of abuse unless these allegations reach a specific prosecutorial threshold.
For many people, learning that a parent may still be granted visitation rights even when there have been allegations of physical or sexual abuse is a deeply shocking truth. Unfortunately, unless a case has been escalated to the criminal justice system, involves Child Protective Services, or falls within the purview of the juvenile court, a parent retains the right to access their child.
Under many current family law frameworks, allegations – no matter how serious – do not automatically override constitutional parental rights. Unless these are substantiated by criminal charges or conclusive child welfare intervention, courts are often hesitant to cut off a parent’s access. Even supervised visitation may not be ordered in the absence of formal findings, and this can leave the child potentially exposed while the system waits for a more definitive ruling.
This legal deference to parental rights, while intended to prevent misuse of the courts to alienate parents, can result in the very risk it seeks to avoid – long-term harm to a child.
While there is the assumption that the court will protect a child at all costs, the truth is more nuanced. Best interest doesn’t always mean best pro-tection. Judges need to weigh several factors, these can be anywhere from eight to twelve different considerations in California, which include a parent’s ability to provide for the child, a history of abuse, substance abuse, emotional bonds and more. Yet, without hard evidence, even serious accusations carry limited legal weight.
The legal presumption often favors continuity and access over precaution, as well. This is troubling, particularly in high-conflict divorce cases where one parent raises safety concerns, only to find those concerns minimized in favor of maintaining contact with both parents. This is further influenced by how custody orders evolve.
At the onset of a case, the court will often issue a temporary custody order based on an expedited assessment of a child’s best interests. However, once the case is settled or goes to trial, these orders can become permanent, even if the initial conditions change over time.
Parental clients wanting to modify an existing custody agreement have to overcome a high legal bar. They are expected to file a Request for Order and prove two important facts: first, that the proposed change is in the child’s best interest, second that there has been a significant change in circumstances since the last order was issued. Without satisfying both criteria, even a client wanting to protect their child from potential harm may be unable to change existing custody terms.
That said, California does allow children to express a preference in custody matters once they reach the age of 14, but this also comes with caveats. There’s no hard and fast rule that a child’s wishes will be honored when they are 14. Judges maintain broad discretion and often assess maturity, reasoning, and the context in which the child’s preference is expressed. For example, a teen’s wish to stay with one parent over another may be disregarded if the court suspects manipulation, alienation or an external influence. On the other hand, a well-articulated concern from a mature teen might sway a judge’s decision, especially if corroborated by other evidence. Ultimately, this is a gray area which can leave clients in legal limbo.
This ongoing tension between parental rights and child safety plays out in courtrooms across the country eve-y day. While the law aims to prevent the misuse of protective claims and parental alienation, its current structure may put children at unnecessary risk. For instance, a mother who reports inappropriate behavior by her ex-partner toward their child without providing police records, medical records or third-party intervention, may find that her claims do not meet the evidentiary standard needed to restrict visitation. Worse, raising these concerns may even be perceived as an attempt to alienate the other parent and potentially harm her own legal standing.
Perhaps the system requires greater flexibility, particularly in how it evaluates early, credible warnings of harm. Family courts need to be empowered to act protectively without waiting for criminal charges or agency involvement, especially when risk indicators are strong. A more trauma-informed, child-centered approach could allow for protective interventions while maintaining procedural fairness. An approach like this could include:
- A more rigorous role for mental health practitioners in evaluations.
- Lowering evidentiary thresholds for supervised visitation in initial hearings.
- Legislative updates clarifying how allegations should be weighted before criminal or juvenile cases are filed.
The legal field cannot continue to treat parental rights and child safety as competing priorities. Instead, there is a need to acknowledge that safeguarding a child’s wellbeing is the ultimate expression of parental rights. The current system’s tendency to prioritize access over caution may protect due process, but it does not always protect the child. It is time for legal reforms that acknowledge this gap. Until then, attorneys, judges and advocates must navigate this fragile balance, knowing that the law doesn’t always follow the instincts of protection.
Comments 1
I am dealing with this as we speak and I can honestly say that I have never been so disappointed in our court system before in my life and that is saying a lot. I unfortunately have a front row to this exact situation and it involves the only thing I strive for on a daily basis and that is my children. Of course when I brought them into the world I was under the impression the man that fathered them was going to be the most amazing father being is how he had 2 children from a prior marriage and was single handedly raising them all alone. A daughter 1m8 and a son 6. Fastworward to today and I have 3 children with him a 19!year old a 165?year old and an 8!year old. Due the horrible things that would happen while I was at work 18 hours since he did not work almost the entire duration of our 16?year marriage due to the child abuse allegations made by his ex ( mind you she was in jail while making this claim and so when the police arrested my husband both of my step children’s parents were incarcerated. So the police informed me that they would be going into a home with cps or they could stay in our home? WELL ARE You kidding WE HAD FULL CUSTODY AND THIS WAS THERE HOME. So my husband stayed with his parents as there was a restraining order in place for my step sons safety . Well I was in my 3 tri and ready to have my own baby and working 14 hours since days and my daughter danced full time after school and my oldest played basketball weekly and my stepson had football thank god the season was over. So my mom moved in with me to help me. His family did not offer any help whatsoever. My husband was arrested for child abuse December 8 th 2009 and did not or should I say was unable to come home until April 27 th 2010. Fast forward again to Oct 31st 2018 and as you know it’s Halloween and just a quick indication of how odd things could get we were on the way to my in-laws home and my kids were silent and wide eyed the whole way.,see I had upset my husband the night before I worked 18 hours and I told him 26 so the entire way to my en laws he was screaming cussing and telling me over and over how inconsiderate I was and that I was so rude and self absorbed and that I was never ready to be a mom or wife because of my selfishness.. looking at the kids in the rear view mirror fighting harder than hell to not cry because I was exhausted I worked more hours than normal because of the holiday and I live Halloween so I always go all out and that meant $$$$$ on costumes. But I got them the ones they wanted and they looked so awesome and God forbid they show ounce of excitement while he was in the middle of an interrogation. So we get there and the kids get out and they are there pizza so fast I knew they wanted to hit the streets. My youngest at that moment was over it. I was already seeing signs in my son that he had something else going on mentally that was unprepared to deal with but none the less it was prevalent. So I made the decision to stay back with him the farther houses and than the closest homes I would trade in it my husband and take the kids. Well 10 min go by and I left my sons blanket in the car I went outside to grab it and I heard the most god awful screams it was gargled as if screaming under water and than I could hear my daughter saying dad please stop.i have never ran so fast in my entire life I ran around the corner to see my husband standing 5’11 weighing 300 lbs with HIS KNEE ALL THE WAY UP TO HIS CHESTARMS UP EACH SODE OF HIS BODY PUEHING DOWN WITH EVERYTHING IN HIM AND STOMPING IN MY SON THAN years old my daughter than 12 on top of him trying to protect him..FAST FORWARD TO TODAY…..and we are now in court and it’s our divorce… most of you would say what took so long…… YOU HAVE NO IDEA THE AMOUNT OF PAIN GUILT NUMBNESS CONFUSION AND DOWN RIGHT DISGUST INHAD IN THIS MAN, and not to mention the mental capacity I had been in was far from my norm so I was trying to navigate that too. Oh and it was COVID I closed my salon of 7 years lost our home and lived in a hotel for 6 months now in a home again with no vehicle for 4 years. Dealing with 2 teens that have been suicidal many times constantly holding it together ONLY FOR MY KIDS AND I MEAN ONLY. And everyday feeling like a complete failure. Oh I forgot to mention that during the evaluation of the abuse with the proper authorities my than 12!year old daughter reluctantly confessed to 6 years of sexual abuse by the hands of her very own brother my stepson. And this was not just curiosity he was 7 years older and my daughter no longer had her female well part.i was a shell / I was sick I was no longer in control it was the lord or no one. So at court the other day the amazing and only so friendly guardian at lietem tells me the child abuse was alleged and that the kids need to be with there dad. At that she insists I take well has me jumping through hooos and I was honestly so excited for some help being that I’m in mn and with all the lovely fraud and the autism community my son had now been on a waiting list for. Years and I was receiving zero help! So now GAL was upset I felt some of the things she was asking of me was out of line and in warranted and honestly a waste of money I Do not have. And of course my ex is working has been since our split in 2019 and I am not unfortunately due to my kids needing me and honestly I need to regroup and figure things out for us. But believe me I was more than ready I was or am going stir crazy. But gal was upset so the next court appearance she has me doing another test and mind you she shows up to court and sits with my ex for 45 min laughing talking carrying on like old friends catching up and says not one word to me until we were together p min away from court starting .at that time I had told her I reached out to cps about an alleged incident that involved myself purchasing narcotics hence her having me do multiple drug tests all that I had passed of course only to call cos and find NOTHING LIKE THAT AT ALL ON MY FILE!! Nothing!!! She was pissed that I called to ask about this and proceeded to tell me that it was never fully entered in as a complaint considering the children were not present at the situation. WELL I HAVE NEVER HEARD OF SUCH BS! That is horrible I would still be with my children high am I right!?!?! So long story short she flat out lied!!! Lied and I had told her that the only time cps has been in our lives was due to decisions my ex had made!!!! And now here we are a month away from trial and guess who I am dealing with CPS!!!!wmd the crazy thing is I spoke to my ex cousin a few weeks back she told me my ex said that I was under investigation I SAID NO I AM NOT! He is lying!!!! WELL NO HE IS NOT I AM MOW UNDER INVESTIGATION UNNECESSARY INVESTIGATION BUT ONE THAT WILL INSTANTLY MAKE ME LOOK BAD UNTILL I BRING OUT ALL THE PROOF I MEED IN THE MEAN TIME SOME ONE EXPLAIN TO ME HOW MY EX KNEW OF THIS INVESTIGATION WEEKS ALMOST A MONTH PRIOR …..I am exhausted and I thought this stuff only happened in lifetime movies but I am so exhausted and I am still in need of legal representation and I am so fearful of loosing my boys . My youngest will not do good with this!! Not to mention my ex posts all over social media his opinions on autism and how he thinks it’s all be. I am in court by myself as a victim of domes Violence by the hands of my ex ( it is my fault I did not press charges so therefore I understand my claims can look false.) But I walk into court with GAL who is supposed to be for my kids mind you talked to them for less than 10 min and has not spoken to anyone regarding our lives and thinks my son has not been properly diagnosed with autism so is running on that narrative as she reports me to any and all organizations that could help her in the removal of my children meeting today.i have proof of everything and am not in fear for I am not doing anything wrong. But what I do want to know is why am I here at all? So if you ask me what I think about family court and abuse allegations in court and custody. I think guardian at lietem is a waste of money the program needs to be revamped and redone completely! CPS IS A JOKE TOO! All of these programs are in danger but yet WE NEED THEM TO PROTECT OUR CHILDREN! The problem is there so over worked underpaid and just anyone is working for them. And those any bodies are able to take children away from their parents with little to no knowledge of what it is that they are doing. 78% of children in custody battles right now have been abused by one of the parents and 69% of the 78% will end up with their abusive parent not the protective parent. Out of that 69% 53% will end up hospitalized with in months of the transition of parentage and 22% will end up unalive. SO PLEASE HELP ME UNDERSTAND THE PROBLEM WITH THIS .. PLEASE GOD!