Do California Courts favor fathers in child custody cases? Most fathers would be quick to argue that the answer is a resounding “no!” In my blog entitled “Do California Courts Favor Mothers in Child Custody Cases”, I received a lot of feedback in my California Family Law Practice from angry father’s strongly disagreeing with my response in that blog that stated, in essence, that the courts do not favor mothers. I now feel it my duty to clarify the position of the father.
If you are dealing with a custody case—either through a divorce or parentage action, there are some basic terms and legal concepts you must first understand. For instance, many people refer to “custody” to mean anything and everything related to custody. Unwittingly, they may be referring to “legal custody” or “physical custody.” To understand how the court will consider your (or the other parent’s request for custody) of your child, you must first understand some basics.
In accordance with California law, “child custody” has two parts—physical custody and legal custody. Either or both types of custody can be awarded to one parent (known as “sole custody”) or to both parents (known as “joint custody”).
There are two types of physical custody—sole physical custody and joint physical custody. “Sole physical custody” specifically means that a minor child will live primarily with one parent. For all practical and legal purposes, this is the child’s legal residence—as reported on school records, medical records, etc. “Joint physical custody” means that both parents will have shared physical custody. The goal of joint physical custody is to ensure that the minor child has frequent and continuing contact with both parents. Joint physical custody doesn’t mean that physical custody has to be exactly 50/50.
Whenever the court issues orders with respect to physical custody, the court will almost always also resolve visitation issues. A proper California court order will include the stated rights of each parent with respect to physical control of the minor child in such detail as to allow a parent deprived of control to include laws preventing kidnapping—if necessary.
Situations where a couple can likely achieve 50/50 joint physical custody: the parents live in close proximity to each other, resulting in the ability for the child to live with both parents and does not impact the child’s school attendance or studies. For example, there are some parents that live within a mile of each other and have similar work schedules, resulting in the ability for both parents to achieve 50/50 physical custody as well as 50/50 visitation.
Situations where the court will give sole physical custody to one parent: for example, situations where the parties are not married and have no ongoing relationship. For example, if father has disappeared or abandoned mother and child(ren); situations wherein the parties live so far apart as to adversely affect the best interests of the child(ren) if joint physical custody was granted. For example, it is impossible for a child to live in two households if mom and dad live 100 miles apart.
Just as with physical custody, there are two types of legal custody—sole legal custody and joint legal custody. “Sole legal custody” means that one parent will have the legal right, as well as responsibility, to make decisions regarding the minor child, to include, decisions relating to the health, education and welfare of the minor child(ren). “Joint legal custody” means that both parents share in the decision-making. For example, if mother has sole legal custody of the couple’s minor child, she alone has the legal authority to make decisions regarding the types of school the child will attend, the type of religion the child will practice, the type of diet the child will have, the geographic area the child will live and so on. The mother is not required to obtain the consent of the father.
Situations where the Court will usually grant joint legal custody : 1) parents mutually agree to joint legal custody; 2) the parents are able to co-parent the child and reach agreements regarding the child’s best-interests; and 3) the court determines, after having carefully considered the facts and evidence, that it is in the best interest of the child to award joint legal custody.
Situations where the Court will usually grant sole legal custody to one parent : 1) parties cannot reach agreement on sharing legal custody; 2) there is only one parent in the picture—e.g. one of the parents has abandoned the children or disappeared; 3) the court, after carefully considering all facts and evidence, determines it is in the best interest of the child to award sole legal custody to one parent. Examples include: parents practice different religions and both strongly oppose the child being exposed to the other parent’s religion (Catholicism versus Judaism); parents fight about almost everything regarding the needs of the minor child, e.g. diet, schools, life-style, etc. In other words, if it is impossible for the parents to coordinate co-parenting, then the court will be forced to issue a court order, naming only one parent to have sole legal custody.
Complexities of Custody
The court can award, or the parties can agree, on various types of custody: 1) sole legal to one parent and joint physical custody to both parents; 2) sole physical custody to one parent and joint legal custody to both parents, and so on. Ultimately, the court’s ruling will depend on numerous factors affecting the best interest of the child. A California family-law judge will consider all relevant facts and evidence to determine how to award legal custody and physical custody.
Can an older child express to the court his or her preference? This is a very common question asked by many parents. Many parents believe that a child should have the legal right to state their preference to the court and that the court should honor the child’s wishes. Here is the problem: first, a parent can easily influence a child to state a preference of one parent over another parent; court concerns regarding the child receiving rejection and/or retaliation against them by the non-preferred parent; the child experiencing feelings of trauma and/or guilt in stating a preference to the court; court concerns regarding enmeshing the child in the middle of the parent’s custody battle; and, finally, the child’s ability (or lack thereof) to make informed or intelligent choices. (For instance, a child favors the parent who gives them no curfews or rules over the parent who provides strictly-enforced structure and supervision; therefore, the child will ask the court that he/she live with the conservative parent.)
Notwithstanding the above, the court, under certain circumstances, will consider the child’s wishes as a factor. In other words, the court will look to ALL facts and evidence, along with the child’s preference, when reaching a determination on custody. Also, when considering the wishes of the child, the court will take into account the following: the child’s age, the child’s capacity to form an intelligent preference, looking also to the child’s level of sincerity, bearing, and degree of maturity. For example, some 13-year olds are more mature than some 17-year olds.
Other factors the court will consider:
- Child’s need for stability and continuity
- Emotional bonds
- Sexual conduct
- Sexual preference
- Religious practices
- Physical handicap
- Disparity of incomes
- Criminal history (if any) of the parent(s)
- Existing restraining orders
- Parent’s gender
- History of domestic abuse or violence
- History of sexual abuse
SO BACK TO THE QUESTION: DO THE COURTS FAVOR FATHERS IN CUSTODY CASES?
My answer is this: No. Statistically speaking, if the courts do not favor fathers in custody cases, it’s not because of their sex, but rather, the fact that mother (in most cases) was the primary caregiver of the child prior to date of separation (or prior to the petition for custody being filed). For example, if mother was a stay-at-home mother and father worked full time, or, the parties never married and mother was a single parent, the court will look at the matter from the child’s perspective. Also, the court will do whatever is possible to keep the status quo as best they can for the child. The courts are acutely aware of the emotional distress that will result from uprooting a child from his/her structure and breaking continuity. In other words, the courts will do what they can to maintain the schedule that hopes to maintain the status quo for the child’s benefit—not the parents’ wishes.
WAYS FOR FATHER TO LEVEL THE PLAYING FIELD
- All things being equal, proving to the court that custody should at least be 50/50 because, statistically, this is the best outcome for the child;
- If seeking sole custody, proving to the court, with evidence, that the child will thrive better in your care more so than in the mother’s care. For instance, you are better able to set and follow a schedule for your child; you are better able to keep contact with the child’s teachers and doctors; your work schedule if more flexible than mom’s; you provide much-needed structure in your child’s life; you are more conscientious of your child’s education and grades.
Bottom line, while there is an inclination to, perceptually speaking, “favor” mothers especially where the mother has been the primary caretaker of the child up to time of separation (or date of filing the petition), it’s then incumbent on the father to show that a change in the status is in the 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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