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CALIFORNIA FAMILY CODE
RIGHT TO CUSTODY OF MINOR CHILD BY NONPARENTS
MATTERS TO BE CONSIDERED IN GRANTING CUSTODY
Family Code Section 3401
(a) 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 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 his or her 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 any 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 or persons 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.).