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Child Custody— California Courts Consideration in Making Custody Awards —Part 4: Parent’s Gender

This is the fourth entry in my blog series “California Court’s Consideration in Making Custody Awards.”  As stated in Parts 1, 2 and 3,  I am writing this series due to the number of emails and calls I receive on a weekly basis in my California Family Law Practice from California concerned parents regarding custody cases. It’s my hope to help shed a little light on this issue so that my reader is better able to navigate his/her way in the California legal system regarding their custody case.  Part 4 focuses on issues relating to Parent’s Gender—from the court’s perspective. This issue, and many others, are factors a California family-law judge will look at when making a determining on custody.

Parent Gender

 Read my earlier blogs “Do California Courts Favor Mothers in custody Cases” and “Do California Courts Favor Father’s in Custody Cases” if you wish to learn more about a parent’s gender in custody cases.  The difference between this blog post and my prior blog posts is that this blog post provides more law for this reader to refer back to when considering gender issues in custody cases:

Simply put, a court may not prefer a parent as a custodial parent because of that parent’s gender.  (Family Code section 3040(a)(1)). In addition, California courts are legally required to accord parental rights to same-sex couples, e.g. custody rights.  (See Kristine H. v. Lisa R. (2005 37 C4th 156, 162, 33 CR3d 81; K.M. v. E.G. (2005) 37 C4th 130, 144, 3 CR3d 61; Elisa B. v. Superior Court (2005)  37 C4th 108, 122, 33 CR3d 46; Sharon S. v. Superior Court (2003) 31 C4th 417, 422,2 CR3d 699 (second parent adoption); Charisma R. v. Kristina S. (2009) 175 CA4th 361, 370, 96 CR3d 26, disapproved on other ground in Reid v. Google (2010) 50 C4th 512, 532 n 7, 113 CR3d 327.)

What this means in a custody case: the law puts in place that there could be no automatic presumption that either parent should be awarded custody as a matter of law.  While it may appear that mother’s tend to be awarded custody more so than fathers, from my experience, that’s more a matter of practicality than anything else. For instance, a married mother who was the primary caretaker of the children before the divorce paperwork was filed; or, an unmarried mother was completely abandoned by the father at time of pregnancy, only for father to later to come into the picture years later seeking joint legal custody.  From a court’s perspective, there are going to make decisions that cause less physical, emotional and psychological disruption to the child.  Thus, if a court grants custody in favor of one parent over another, it’s not because of the parent’s gender, but rather, because they are making a decision that is in the child’s best interests.

In order for a court to make a proper determination regarding custody issues and parent gender issues, it is very important for a parent pursuing (or challenging) a request for sole legal custody, to bring to the court’s attention any and all facts and evidence concerning the other parent’s parenting skills and abilities. Such examples include, but are not limited to, health issues, work hours, drug dependence, poor history of parenting, little to no concern for child’s education, emotional/psychological/physical/sexual abuse, and any other fact that adversely affects a child’s best interests.

Legal Disclaimer: Everything on this blog pertains to California law only and is written by an attorney licensed to practice only in the State of California. Further, information provided on this blog post or this website is to be used for general informational purposes only and is not to be construed as legal advice in any way shape or form. The underlying purpose of this blog post is to provide the reader with general information to use in talking with an attorney and/or as a general guide when conducting  their own research on their  particular legal matter.  Finally, keep in mind that if you are not a California resident and/or your matter is not based in California, the laws may differ in your state. In such cases, it is recommended that you seek legal assistance and/or review information that relates to the laws of your state.

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