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.
