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The Angelina Jolie Custody War: A Case Study for the Best Interest of the Child Custody Standard

There are few celebrity custody cases more embattled and complex than that involving Brad Pitt and Angelina Jolie. The underlying theme of the case is the best interest of the child standard, - the foundation of child custody law in California.

Brad and Angelina met in 2004 and married in 2014. During the course of their relationship they had and adopted many children – the minor children now are Maddox, Pax, Shiloh, Zahara, Knox, and Vivienne. The couple separated and started the divorce process in 2016.

The children spend most of their time with Angelina and Brad is in an uphill battle to get 50/50 custody. Angelina has alleged that Brad is alcoholic and abusive to the children – charges Brad denies. They have fought over everything from schooling to where the children will live. In sum, this is a mess.

The best interest of the child is the standard that underlies this and just about every other custody case in California.

The best interest of the child standard is set forth in Family Code Sections 3020 and 3011. Section 3020 of the Family Code sets forth the two critical policy directives that govern this determination. The best interests determination is governed by two important considerations – the court’s “primary concern” for the child’s health, safety, and welfare, and “frequent and continuing contact” with both parents. When there is no threat of child endangerment, these two policies are on an equal footing; but when the policies conflict (i.e. because the child’s safety or health is jeopardized by contact with an abusive or neglectful parent), a custody or visitation order “shall be made in a manner” that ensures the child’s health, safety, and welfare and the safety of all family members. (Cal. Fam. Code, §3020(c)).

The first public policy interest, outlined in Family Code Section 3020(a) is that “the health, safety, and welfare of children shall be the court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.

The second public policy interest, outlined in Family Code Section 3020(b) is “to ensure that children have frequent and continuing contact with both parents … and to encourage parents to share the rights and responsibilities of child rearing.”

While these two public policy interests are not always in conflict, Section 3020(c) states that if they are in conflict, the health, safety, and welfare of the child take priority over “frequent and continuing contact”.

Section 3011 of the Family Code sets forth the factors that the court “shall” consider in making a determination of the best interests of the child. The court “must look to all the circumstances bearing on the best interest of the minor child” in making its determination. (Marriage of LaMusga (2004) 32 Cal. 3th 1072, 1087).

Some of the factors that the trial courts must consider as set out in California Family Code section 3011 are the following:

(a) The health, safety, and welfare of the child;

(b) A history of abuse by a parent against the child or the other parent;

(c) The nature and amount of contact with the parents.

(d) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent.

For the second factor, the history of abuse, the “abuse against a child” contemplated by the statute means “child abuse and neglect” as defined by Section 11165.6 of the Penal Code – i.e. generally, a nonaccidentally-inflicted physical injury, neglect, or sexual abuse. “Abuse against the other parent” or any other person means “abuse” as defined in Section 6203 of the Family Code – i.e. intentionally or recklessly causing or attempting to cause bodily injury, sexual assault, placing a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or engaging in any behavior that has been or could be enjoined pursuant to Section 6320. (Cal. Fam. Code §3011(a)(2)(B)). Section 6320 of the Family Code defines this behavior as “molesting, attacking, striking, stalking, threatening, sexually assaulting, battering … harassing … destroying personal property … or disturbing the peace of the other party.”

For both allegations of abuse and substance abuse, the Court may seek independent corroboration of the claims.

What does this mean for Brad and Angelina? The default for their custody case should be frequent contact for both parents with their children. However, that policy is short-circuited by any allegations of child abuse and substance abuse that the Court finds substantiated. Brad has 21 witnesses to testify to his fitness to have 50/50 custody. We’ll see if that is enough.

Custody matters are complex. A parent needs counsel with knowledge of the law who can corral the facts and the law in their favor. Get a custody evaluation now to protect your children!

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