FAM § 3040

Parents First for Child Custody | FAM § 3040

FAM § 3040 gives custody preference to parents first, establishes no presumption for sole or joint custody, and prohibits considering gender or immigration.

Official text FAM § 3040 — California

(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

(b) The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).

(c) The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child under subdivision (a).

(d) (1) Commencing January 1, 2024, if a court finds that the effects of a parent’s, legal guardian’s, or relative’s history of or current mental illness are a factor in determining the best interest of the child under subdivision (a), the court shall do both of the following: (A) Provide the parent, legal guardian, or relative with a list of local resources for mental health treatment. (B) State its reasons for the finding in writing or on the record.

(2) This subdivision does not relieve a court from ensuring that the health, safety, and welfare of the child is the court’s primary concern in determining the best interests of children when making any order regarding the physical or legal custody, or visitation, of the child.

(e) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child, consistent with this section.

(f) In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.

Text as published in the 2026 snapshot of the code.

Source: Vaquill Open US Law, compiled from official state publishers (huggingface.co), reproduced under license CC BY 4.0.

Read this provision at the official source →

What it actually says

Section 3040 sets the sequence in which custody is considered, always according to the best interest of the child as defined in §§ 3011 and 3020. Subdivision (a)(1) puts custody to both parents jointly, or to either parent, first; in making an order to either parent the court must consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the other, and may in its discretion require the parents to submit a plan for implementing the order. Paragraph (2) comes next: if to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment. Paragraph (3) is the residual: to any other person deemed suitable and able to provide adequate and proper care and guidance.

The section then removes several considerations from the calculation. Subdivision (b) provides that the immigration status of a parent, legal guardian or relative does not disqualify them from receiving custody. Subdivision (c) forbids the court from considering the sex, gender identity, gender expression or sexual orientation of a parent, guardian or relative in determining best interest. Subdivision (d) deals with mental illness: where the court finds the effects of a person's history of or current mental illness are a factor, it must both provide a list of local mental health resources and state its reasons in writing or on the record, without displacing the child's health, safety and welfare as the primary concern.

Subdivision (e) is the sentence most often quoted out of context: the section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody or sole custody, but allows the court and the family the widest discretion to choose a parenting plan in the child's best interest. There is no default 50/50 in this section. What arrangement fits a particular family is exactly what a family lawyer and, where the court orders it, custody mediation are for.

When it applies

Two parents each asking for primary custody
A grandparent or relative who has been raising the child
A parent who says the other will not allow contact
A parent worried their immigration status will count against them
A parent whose mental health is being raised by the other side
You have been told California courts start from a 50/50 split

What this section does not say

There is no presumption of joint custody in it. Subdivision (e) says the section establishes neither a preference nor a presumption for or against joint or sole custody.
It does not create an equal-time default. The order of preference is about who receives custody, not about how the time is divided.
It does not allow immigration status to count. Subdivision (b) says immigration status does not disqualify a parent, guardian or relative.
It does not permit consideration of sex or sexual orientation. Subdivision (c) removes sex, gender identity, gender expression and sexual orientation from the best interest determination.
It does not supply the factors. Best interest is determined under §§ 3011 and 3020, and this section governs the order of preference once that assessment is made.

Worked examples

Invented situations, written to show how the wording bites. They are not real cases, not judgments and not precedent, and nothing here predicts what would happen in yours.

Illustrative example

Two parents each ask for the children to live mainly with them, and one has been told repeatedly that California courts begin from an equal split.

How the wording applies

Subdivision (e) says the section establishes neither a preference nor a presumption for or against joint legal, joint physical or sole custody, which disposes of the even-split starting point directly. It turns on the best interest assessment under sections 3011 and 3020, because the order of preference here is about who receives custody, not about how the time is divided.

How the parties settled it

The parents agree an arrangement built around the children's schooling and activities rather than an arithmetic split, with a written review date and a mediator to be used before any change is imposed.

Illustrative example

One parent's immigration status is raised by the other as a reason they should not have custody.

How the wording applies

Subdivision (b) states that the immigration status of a parent, legal guardian or relative is not disqualifying. The fact this turns on is the same as in any other case, the child's best interest under section 3011, and subdivision (c) similarly removes sex, gender identity, gender expression and sexual orientation from the determination.

How the parties settled it

Both parents agree in writing that status will not be raised again in the proceedings or in front of the children, and they proceed to mediate the schedule on the ordinary factors.

How courts have read it

Decisions construing this provision. The question and the summary are ours; the quoted sentence is the court's own words, taken from the published opinion. These are the decisions in our corpus, not every decision there is, and nothing here predicts any other case. Reported 1991 to 2017.

Lester v. Lennane, 84 Cal. App. 4th 536 (2000)

Court of Appeal

What the court had to decide

Does Family Code section 3040 preclude a court from making a custody order based on a preference of one gender over another?

What it held

The court held that Family Code section 3040(a)(1) precludes a court from making a custody order based on preference of one gender over another, and that the trial court did not violate that provision.

In the court's words

Family Code section 3040(a)(1) [sic] precludes the court from making a custody order based on preference of one gender over another.

Source: Caselaw Access Project, CC0 1.0 Universal (public domain dedication).

The same problem elsewhere

The other legal systems in this collection answer the same everyday problem with their own provisions.

The comparison and these one-line summaries are in English.

Separated parents who cannot agree where the children live: what the law says in six jurisdictions

Read the full comparison →

Related sections

FAM § 3011 California Family Code § 3011 - The factors a court weighs in a custody decision FAM § 3044 5-year domestic violence custody presumption: FAM § 3044 FAM § 3087 Modify/terminate joint custody if best interest. FAM §3087 FAM § 3100 Visitation Rights & Restraining Orders: FAM § 3100

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We copy this text from the official publisher and re-check it against that source on every page load, but we cannot guarantee it is complete, current or free of error, and we accept no liability for any reliance on it. An amendment can take effect before a consolidation catches up. The publisher's own copy is linked below; where the two differ, it is the official one that counts.

This page reproduces the text of FAM § 3040 in force at the date shown and explains it in general terms. It is not legal advice and takes no account of the circumstances of your case, which can change the answer completely. For a live dispute, for limitation periods, and before taking any step in court, consult a qualified lawyer in California.

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