It’s a common thought: The woman always gets the kids. But it’s simply not true. Our discussion here will focus on a father’s custody rights. In every initial case for physical custody and legal custody of the children, the court must take into consideration what we call the “best interest” of the children, and that does not automatically mean the mother or the father gets the kids. Let’s take a look at how these decisions are made.
Determining Custody Rights
The way the court looks at making a custody award is described in Family Code section 3011, including things such as the children’s health, safety, and welfare; any history of abuse by one parent against the other; substance abuse by either parent; and the nature and contact with the children by both parents.
Being an involved parent rather than an absent or neglectful parent is one way to ensure your time with the children is not minimized or taken away.
Generally, if you have been living with the other parent and the children and you, the father, are the one who moves out, you should take immediate steps to contact your attorney and obtain court-ordered joint physical and joint legal custody.
In some cases, the court may order sole custody to one parent, but this is less common than you might think. Physical custody describes who the children live with, while legal custody has to do with making decisions that affect the lives of the children, such as health care or school or travel.
Preparing to Request Custody Rights
If you are still living with the other parent and the children and one of you is considering leaving the family, make sure you focus your best efforts on maintaining a healthy, involved relationship with your kids.
Keep a journal of your daily activities with the children, such as playtime, meals, trips, shopping, homework, parent-teacher conferences, extracurricular activities, and anything else you do that includes them. Prepare yourself for a change, whether you move or the other parent does, and assert your right to spend time with your kids—not aggressively but certainly firmly.
Determining Custody Rights in Court
At some point, if your case goes to court, you will have to attend custody mediation, a service provided by employees of the court, but sometimes parents hire private mediators.
In the court mediation, the mediator will confer with both parents either together or separately, and they have the option of speaking to the children as well. At the end of mediation in San Diego County, the mediator provides a report and recommendations to the parents and the judge, who will then decide whether to adopt the recommendations in full or change some or all of them after hearing from the parents.
With luck, and the assistance of an experienced family law attorney, you will be awarded substantial time with your children.
But don’t depend solely on luck: You already know parenting is a big job and going to court makes it even more difficult with more people getting involved in your life. Make good decisions, see your kids as frequently as you can, and be the kind of parent your children will be proud of.
Let your attorney guide you through the process because it is complicated and often frustrating when you’re on your own.
There is no reason for the court to favor a mother over a father and you should remember this and work toward your goal of remaining a big part of your children’s lives. It may not always seem that the court is trying to keep your relationship intact, but the intent of the law is that both parents are supposed to be given equal consideration in any custody decisions.
An Experienced Attorney Can Help With Custody Rights
When you’re going through a divorce, an experienced divorce attorney can help you navigate the process, including any child-related issues like custody rights.
If you are considering divorce or have already made the difficult decision to pursue divorce and have questions, contact JWB Family Law to schedule a free consultation.
Learn more about the Certified Family Law Specialist (CFLS) designation and why it’s important.
The Gold Standard of Attorneys
The Preeminent AV Rating from Martindale-Hubbell recognizes an attorney’s exemplary legal ability and professional ethics. Learn more about the founder of JWB Family Law, Jane Wesley Brooks, CFLS. Jane is a Certified Family Law Specialist with the California State Bar, and a Martindale-Hubbell® AV Preeminent Peer Rated lawyer.
The information and materials on this website are provided for general informational purposes only, and are not intended to be legal advice. We attempt to provide quality information, but the law changes frequently, and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance. An attorney and client relationship should not be implied. Nothing on this website is intended to substitute for the advice of an attorney; therefore, if you require legal advice, please consult with a competent attorney licensed to practice in your jurisdiction.