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Last Modified on Oct 28, 2026
What California Courts Weigh in Custody in 2026, Including Human Trafficking
By Kent Tierney | Tierney Law Group, P.C.
The core list of what a judge considers in determining a child’s best interest is in Family Code section 3011, read together with related provisions such as sections 3020, 3040, 3042, and 3044. As of January 1, 2026, Family Code section 3040.5, added by Assembly Bill 1375 (2025), provides that when the court determines a child’s best interest under section 3011, it shall consider any relevant, admissible evidence that a parent has caused human trafficking of the child or the other parent.
The Section 3011 Framework
Section 3040.5 does not create a new custody presumption and does not define trafficking. Section 3011 remains the framework. It directs the court to consider, among other things: the health, safety, and welfare of the child; any history of abuse by a parent or other person seeking custody, which the court may require to be independently corroborated; the nature and amount of contact with both parents; and a parent’s habitual or continual illegal use of controlled substances, or habitual or continual abuse of alcohol or prescribed controlled substances, which the court may also require to be corroborated. The list is not exhaustive.
If abuse or substance-abuse allegations are before the court and the court still orders sole or joint custody or unsupervised visitation to that parent, the court must state its reasons in writing or on the record, and the order must be specific as to the time, day, place, and manner of transfer of the child. Under section 3011(b), the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative.
What Section 3040.5 Does and Does Not Do
Section 3040.5 is one sentence. “Shall” is mandatory: the court must consider the evidence. “Relevant” and “admissible” are real limits: the evidence must satisfy the Evidence Code. The statute does not require the court to deny custody automatically, and it does not require a criminal conviction.
Section 3040.5 also does not displace Family Code section 3044. Under section 3044, if the court finds that a party has committed domestic violence against the other party, the child, the child’s siblings, or certain others within the previous five years, there is a rebuttable presumption that awarding that party sole or joint physical or legal custody is detrimental to the child’s best interest. Domestic violence findings and the 2026 firearm-related changes are covered in a separate article.
Talk With a Pleasanton Family Law Attorney
If you have questions about custody in Pleasanton, Alameda County, Contra Costa County, or elsewhere in the East Bay, the attorneys at Tierney Law Group can help you evaluate your options.
Contact Tierney Law Group at (925) 362-3364 or [email protected] to schedule a consultation.
This article is for general informational purposes only and is not legal advice. Outcomes depend on the specific facts of each case. Statutes and local practice can change; confirm current law with counsel before filing.
