One of the biggest concerns fathers facing custody proceedings have is that the Court will innately favor the mother over the father when deciding child custody orders.
However, despite this misconception, California courts do not favor one parent over the other based solely on their gender.
Child custody is governed under California law by Sections 3040-3049. The law provides a preferred order of custody options available, which depend on a number of factors regarding the child’s or children’s best interests.
These possible custody options include the following:
1. Shared custody between both parents
2. Sole custody to one parent
3. Sole physical custody to one parent with visitation and possibly shared legal custody to the other parent.
Child Custody
It is important that certain terms be understood first. In California, two different parts of child custody are considered: physical custody and legal custody.
When custody is awarded to one parent it is known as “sole custody,” and when it is split between both parents it is known as “joint custody.”
Physical Custody
Physical custody has to do with where the child will be living. Two different types of physical custody exist, sole physical custody and joint physical custody.
The misconception regarding mothers receiving custody normally is with respect to physical custody. Many individuals falsely believe that the mother will automatically have the child or children live with her, but this is not the case.
Joint physical custody is becoming a more frequent arrangement where both parents have shared physical custody. California courts prefer to see the parental relationship maintained with both parents, and joint physical custody ensures that the minor child has continuing and frequent contact with both parents.
Custody does not necessarily have to be 50/50, as that arrangement is not always feasible, but it does mean that the child or children see both parents more frequently.
Once physical custody is resolved in a court order, the Court will then determine visitation, meaning how often the parent who does not have the child the majority of the time will see the child or children.
If joint physical custody is the arrangement and the parents live in close proximity to each other, allowing the child or children to go to the same school district with either parent and this does not have a negative impact on the child or children’s lives, this schedule can be very flexible.
When one parent has sole physical custody, the arrangement can be more restrictive and not as frequent. It can be every other weekend or less frequent with longer periods of time, especially when the parents live 100 miles or more apart.
Legal Custody
The other form of custody handled in family law cases is legal custody. Like physical custody, two different forms exist.
“Sole legal custody” means that only one parent has the legal right to make decisions regarding the minor child’s health, education or welfare.
“Joint legal custody” means that parents share in the decision-making. Joint legal custody is usually the norm in custody determinations, especially when the Court believes the parents will be able to co-parent effectively.
Factors Affecting Custody
Many different factors affect the court’s determination on who gets custody and what type of custody of the parties’ minor child or children.
The first of these factors centers solely on what is the best interests of the child or children. The court will review all of the facts and evidence submitted to determine what custodial situation would be in the best interests of the children affected.
Of the factors considered, the Court will review the child’s need for stability and continuity in his or her living situation, as well as the emotional bonds the child has with each parent.
The Court will also consider the relationship between the parents and whether they have a history of being able to co-parent effectively. If there is a history of sexual abuse, domestic abuse or violence in the home, that will also certainly be a factor.
If there are siblings in the picture, the Court will normally not want to disrupt those relationships either.
Occasionally, the Court will consider the wishes of an older child as to where he or she lives. The child’s request will not be the sole determining factor, but it can be one of the factors considered. When considering the child’s request, the court will consider the maturity level of that child and the reasons for his or her request.
The Court will also consider religious practices, disparity of incomes, the criminal history of either parent.
Lastly, the Court may consider gender depending on the facts of the case. For instance, if the child is a pre-teen female who has expressed an interest in remaining with her mother because she is also female, the Court may consider this as one factor.
However, the Court would consider this along with all other factors to determine what is overall the best decision for the child. It is the best interests of the child, not the gender of the parent, that is the governing factor in the end.
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If you are going through a custody proceeding, contact us today to discuss the best options for your case. Call us today at 323-333-4481 for a free consultation!