(a)Before making an order granting custody to a person other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing on this issue.
(b)Subject to subdivision (d), a finding that parental custody would be detrimental to the child shall be supported by
clear and convincing evidence.
(c)As used in this section, “detriment to the child” includes the harm of removal from a stable placement of a child with a person who has assumed, on a day-to-day basis, the role of the child’s parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require a finding of unfitness of the parents.
(d)Notwithstanding subdivision (b), if the court finds by a preponderance of the evidence that the person to whom custody may be given is a person described in subdivision (c), this finding shall constitute a finding that the custody is in the best interest of the child and that parental custody would be
detrimental to the child absent a showing by a preponderance of the evidence to the contrary.
(e)Notwithstanding subdivisions (a) to (d), inclusive, if the child is an Indian child, when an allegation is made that parental custody would be detrimental to the child, before making an order granting custody to a person other than a parent, over the objection of a parent, the court shall apply the evidentiary standards described in subdivisions (d), (e), and (f) of Section 1912 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Sections 224.6 and 361.7 of the Welfare and Institutions Code and the placement preferences and standards set out in Section 361.31 of the Welfare and Institutions Code and Section 1922 of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.).
Notes of Decisions
Cited in
38
cases (
8 in the last 5 years), 1995–2026 · leading case:
Guardianship of Ann S., 202 P.3d 1089 (Cal. 2009).
Guardianship of Ann S., 202 P.3d 1089 (Cal. 2009).
· cites it 4× “” (Fam. Code, § 3041, subds. (b), (a).) In 2002, the Legislature added subdivisions to Family Code section 3041 emphasizing the importance of a stable home environment for the child.”
Stuart v. Vaughan, 207 Cal. App. 4th 1055 (Cal. Ct. App. 2012).
· cites it 11× “(Fam. Code, § 3041, subd. (a).) Detriment to the child must be supported by clear and convincing evidence.”
In Re Guardianship of Lv, 38 Cal. Rptr. 3d 894 (Cal. Ct. App. 2006).
· cites it 4× “Any doubt as to the Legislature's intent is resolved by reference to other aspects of the 2002 legislation, including (1) the enactment of section 1610, subdivision (a) to state, "The Legislature finds and declares that it [is] in the best interest of children to be raised in a…”
Matthew W. Pitts v. Amanda M. Moore, 2014 ME 59 (Me. 2014).
· cites it 2× “See Cal. Fam. Code § 3041 (a) 39 (West 2007) (requiring the court, among other things, to “make a finding that granting custody to a parent would be detrimental to the child” before awarding custody to a nonparent); S.”
McAllister v. McAllister, 2010 ND 40 (N.D. 2010).
· cites it 2× “§ 25-415 (2009); Cal. Fam. Code § 3041 (2007); Colo.Rev.Stat.”
Evans v. McTaggart, 88 P.3d 1078 (Alaska 2004).
“[37] In custody disputes between a parent and a third party, our research reveals that 14 states, including Arizona, California, Georgia, Idaho, Indiana, Kentucky, Michigan, Mississippi, North Carolina, Oklahoma, Rhode Island, Tennessee, Virginia, and West Virginia, impose a…”
Los Angeles Cnty. Dep't of Child. & Fam. Servs. v. J.E., 1 Cal. App. 5th 331 (Cal. Ct. App. 2016).
“In their view, because Alexandria had a strong primary bond to the family— which all parties and the court concede she did—she would inevitably suffer trauma if that bond was broken, and so good cause exists as a matter of law.”
Preslie Hardwick v. Cnty. of Orange, 980 F.3d 733 (9th Cir. 2020).
“Code § 3041 (a) (“Before making an order granting custody to a person other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to…”
Guardianship of Stephen G., 95 Cal. Daily Op. Serv. 9492 (Cal. Ct. App. 1995).
· cites it 2× “Standard of Proof Family Code section 3041 provides that, before a court may award custody of a child to a person other than a parent, “the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent…”
Guardianship of Zachary H., 86 Cal. Rptr. 2d 7 (Cal. Ct. App. 1999).
· cites it 2× “” Family Code section 3041 states in part: “Before making an order granting custody to a person or persons other than a parent, without the consent of the parents, the court shall make a finding that granting custody to a parent would be detrimental to the child and that…”
Riverside Cnty. Dep't of Pub. Soc. Servs. v. D.H. (In re D.H.), 222 Cal. Rptr. 3d 305 (Cal. Ct. App. 5th 2017).
“Significantly, Family Code section 3041, subdivision (a), provides in part that "Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be…”
— Cal. Family Code § 3041(a) — 1 case
Matthew W. Pitts v. Amanda M. Moore, 2014 ME 59 (Me. 2014).
“See Cal. Fam. Code § 3041 (a) 39 (West 2007) (requiring the court, among other things, to “make a finding that granting custody to a parent would be detrimental to the child” before awarding custody to a nonparent); S.”
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