FATHERS' CUSTODY RIGHTS
July 9, 2019
A CALIFORNIA FAMILY LAW ATTORNEY’S GUIDE TO FATHER’S CUSTODY RIGHTS
In California, the cases pertaining to the custody of a child and rights of the father can be difficult and stressful. It is a common misconception that in custody cases California courts favor the mother. Some fathers believe the courts use a one-sided approach in cases of custody rights.
These beliefs are not true. In fact, California law expressly forbids the court from favoring mothers over fathers. Moreover, it is the express policy of California that the children have frequent and continuing contact with both parents. So while it may seem like the court favors the mother, it is not true. What is true, is the court is looking to fashion a custody and visitation order for your child that is in your child’s “best interest” and when determining the “best interest” of the child, the court looks to the “health, safety, and welfare of the child” first. The fact of the matter is that while the roles of parents have changed significantly over the last fifty years, mothers often take on the role of the primary caregiver early in the child’s life, and this is a fact courts take into account when creating custody and visitation orders.
This article will help you answer your questions in mind in relation to father’s rights in the state of California. As a father, you do have rights.
What are my rights as an unwed father?
As an unwed father, you have a right to seek custody and visitation. Parentage is automatically established when married parents have children in California. The case is different for unmarried parents. When a father is not married, there is no assumption of paternity. As such, unwed fathers must establish paternity in order to enforce their parental rights. If you are an unwed father, you should open a paternity case to get a court judgement establishing you as the father and setting forth a custody and visitation order. This is important even if things are “cool” between you and your child’s mother. What if something happens to your child’s mother, and there is a dispute over who should care for your child in her absence? Another situation that happens all too often is a father will go several years with an agreed upon visitation schedule, but not court ordered, then a conflict will occur with the mother, such as a new girlfriend the ,other is jealous of, and she cuts off visitation. You are going to want an order to protect your rights.
What is legal custody, and what are my rights as a father to legal custody?
You have a right to ask the court for joint legal custody. Joint legal custody means both parents have the rights and responsibility to make decisions related to the health, education, and welfare of your child. This includes decisions in the following areas:
Psychiatric, psychological, or other mental health counseling or therapy needs
Medical treatment except for in an emergency situation
Sports, summer camp, vacation, or extracurricular activities
If you request joint legal custody, it will most likely be granted. This is because the law presumes that joint legal custody is in your child’s best interests. The court will need compelling reasons not to grant joint legal custody. Conversely, if you believe the mother is unable to make proper choices for your child, you have the right to ask for sole legal custody.
What is physical custody, and what are my rights as a father to physical custody?
Physical custody can be referred to as where the child will physically live. The court can grant physical custody to one parent or issue joint physical custody orders. While there is no definition as to what percentage of time with each parent constitutes joint physical custody, it should be significant, at least 40%. A father enjoys the right to ask for sole physical custody or joint physical custody.
It is upon the discretion of the court in California to determine whether there should be sole physical custody or joint physical custody. The law in California prefers joint physical and legal custody when both parents mutually agree. If they don’t agree, there is no starting presumption either for or against physical custody. Instead, the court has the widest discretion possible to design a parenting plan that is in a child’s best interests.
If I am not awarded physical custody, what are my rights to visitation?
If you are not awarded physical custody of your child, the court should order a visitation order. A visitation order specifies the times the child will be with the non-custodial parent. Common visitation orders may include every other weekend, with an evening visit every week and divided holidays and summer vacation. These orders may specify the times for exchanges, the location of exchanges, and which parent is to drive the child to exchanges. These orders may allow for regular phone or Skype communication between the non-custodial parent and the child. The more conflict between the parents, the more specific these orders should be. In making these orders, the court is guided by the “best interest of the child” and the policy that the children have frequent and continuing contact with both parents.
Why can’t the mother and I just sit down and work out a custody and visitation order together?
You can. It is always best if the parents can stipulate a custody and visitation order. In fact, the law favors stipulated custody and visitation orders, and requires that parents attend mediation, without lawyers, and attempt to negotiate a custody and visitation order before the court will hear the case. The family court for the county you live should have a Family Court Services department to facilitate the mediation. The mediators are skilled at bringing the most adverse parents to an agreement.
If I don’t like a custody order, can it be modified?
As a father, you have the right to seek modification of custody and visitation orders. Often orders are issued on a temporary basis, with a periodic review hearing where the court may modify. Otherwise, if there is a final custody and visitation order, you will need to show a “change in circumstances” since the final order was issued, and that it would be in the “best interest of the child.” A change in circumstances may include a change in your work schedule giving you more time to care for the child, a move closer to the child’s school, completion of counseling, or simply the increased age and maturity of the child.
If you want to change the current order, you need to follow the order. Show up on time for child exchanges. Do not frequently cancel visits, and if you do cancel give as much notice as possible. If the order grants you nightly phone calls with your child, make the calls. If you are ordered to attend counseling or drug treatment, attend, even if you disagree. You need to ask yourself, why would the court give me more time with my child if I do not take the time I have already been given.
Tips for dealing with a combative mother
All too often, separated fathers and mothers have a strained relationship. The following are tips to follow when dealing with a combative mother.
Follow the custody and visitation order. As recommended above, you should have a custody and visitation order, even if things are good with the mother. You should keep a copy. In fact, you should have an electronic copy saved to your smartphone. You should know the order and follow the order.
Know when to be flexible. All too often parties become too rigid in insisting that the custody and visitation order is followed. Custody and visitation orders cannot cover every event that may occur. If the mother is twenty minutes late to the exchange because she got off work late, don’t automatically call the police. If the mother has an important event during your custody time, such as a graduation, wedding, or family reunion, consider letting her take your child to that event.
Maintain brief communications regarding your children. If the mother is combative, do not engage her. You will notice that by the end of every phone call, you have achieved nothing and you are aggravated. You will say something that is essentially not a big deal, but they’ll take it the wrong way and make it a big deal for no reason. And then you start defending yourself and the whole thing slips down a slippery slope. Why do it? Don’t engage. It takes two to fight, so just send the information you need to send and refuse to engage. The shorter your communication, the better.
Communicate in writing. Communication should be limited to writing (e.g. text or email) as much as possible. Keep the communication limited to the topic of the children. If you have a phone conversation, follow up with an email or text confirming what was discussed. For example, “Just to make sure we are all on the same page, you’ve agreed to pick up the children at 5:00 p.m. tomorrow and I will have them ready at the library for the pickup. Please let me know if I’ve got this wrong.” Then you have the relevant evidence about the details, which can be important if something goes wrong later. No matter how ugly the response is, keep in mind that the court will likely read this, so keep it clean. Keep in simple. Keep it short. Always write as if the judge is going to read the communications.
Be polite in front of your children and never disparage the mother to the children. Do not involve your children in harsh conversations or bad talks in which they have no role. Do not talk bad about their mother in front of them. Their self-esteem is tied to having a positive image of both parents.
Have realistic goals. If you live in another state, if you rent a bedroom in a house of strangers, if your child is still breastfeeding, you are not going to have an equal time share. If you live two towns away from your child’s school and you need to wake at 5:00 a.m. for work, an evening or overnight visit is probably not in your child’s best interest. If you pursue unrealistic schedules with the court, you are going to lose creditability with the court.
How the court can help with a combative mother
Custody and visitation orders: Well detailed custody and visitation orders can be a powerful tool when dealing with an uncooperative mother as they outline both parent’s rights and responsibilities when it comes to the children. Such orders will schedule the time share, identify the method and place for exchanges, can include rules for communication, such as a rule that communications are to be via email only or time of the communication, and may require counseling, including co-parent counseling.
Parental alienation orders: The court can create orders to stop PAS, which can include no disparagement orders, orders to attend counseling for the non-cooperative mother, reunification therapy for the alienated parent and the child, and in extreme cases removal of the child from the non-cooperative mother.
Custody evaluations: The court has the power to appoint mental health professionals to evaluate the parents, interview the children, interview third parties, and make recommendations as to the best interest of the child. The evaluator will spend significantly more time with the mother and will be in a better position to see her faults than the judge who may only have ten to twenty minutes of interaction with the mother.
Sanctions/contempt proceedings: If a mother violates court orders she can be sanctioned and/or found in contempt. A finding of contempt can lead to civil and criminal penalties including jail time.