Historically, mothers have received custody of the children in a
divorce far more than their husbands. If you’re a child of divorce, or if
you’re from Generation X, think back to your personal experiences
with divorce throughout your
childhood and the 1990s. When you survey in your mind the divorced families you
knew over the years, the mothers probably gained primary custody of the
children in most, if not all of the cases that you recall.
Now you’re faced with
your divorce. You have children of your own and now you’re wondering, “Can dads
win custody of their children in today’s divorce cases?” Whether you’re
the father or the mother asking this question, it has merit. Much has
changed in the past 30 years, especially in regards to how the California
One of the biggest changes is how the courts have become gender neutral.
Meaning, mothers are no longer given preference in child custody cases.
The courts are concerned with the children’s best interests; they
no longer presume that the mother should receive primary custody of the
couple’s children, as they tended to do in the past.
How Child Custody is Determined
In a California divorce case involving minor children, the parents are
encouraged to put their children’s needs first, to determine a child
custody arrangement that is in their children’s best interests.
If the mother and father can reach an agreement outside of court, there
is no need for the court to intervene. When parents agree to be amicable,
or at least reach an agreement that both parties can live with, they work
together to create a plan. A plan that outlines how the children will
be cared for, where they will live throughout the year, and how they will
spend time with each parent.
This “plan,” created by the parents and their respective attorneys,
is referred to as a “Parenting Plan” or a “Time-Share
Plan.” Essentially, this is the agreement that addresses child custody
and visitation. But, what if the parents are unable to draft a Parenting
Plan because they disagree on child custody? What if the father thinks
his wife is an unfit mother and he wants to fight for custody?
Child Custody Mediation
Sometimes, a mother and
father have two very different ideas about who the children should live with
most of the time. Occasionally, a father will feel that his wife is not
fit to take proper care of their children. Though rare, this can and does
happen once in a while.
Common reasons why a father does not want a mother to have custody:
- The mother is addicted to drugs.
- The mother is an alcoholic.
The mother suffers from a
- The mother is incarcerated.
- The mother physically abuses the children.
- The mother was emotionally abusive to the children.
- The mother is suicidal or homicidal.
- The mother was convicted of DUI with a child passenger.
- The mother cannot afford to care for her children.
- The mother has a history of child neglect.
- The mother had an affair and by doing so, failed to properly care for her
children or somehow put them in harm’s way. For example, the mother
left the children home alone overnight so she could go on a date.
- The mother does not ensure the children attend school.
Can a father obtain custody of his children? Yes, it is possible. But we
cannot say that all fathers can obtain custody in all instances. It all
depends on the facts of the case, and whether the court determines that
it is in the best interests of the children to live with the father most,
if not all the time.
If both parents are trying to get primary custody of their children, they
may be required to attend custody mediation, or mediation. According to the
California Courts, mediation “is mandatory in all custody and parenting time cases
before you go in front of a judge to decide.” Child custody mediation
gives parents the opportunity to resolve their child custody disagreements
without having a judge step in and decide for them. With mediation, an
expert mediator helps the parents resolve their disagreements.
If mediation is successful and the parents are able to reach an agreement
they can both live with, the mediator helps the couple draft a Parenting
Plan, which is later signed off by the judge and made into an official
custody and visitation order. In some parts of California, this process
is referred to as “child custody recommending counseling”
because if the parents fail to reach an agreement, the mediator can create
a written recommendation and give it to the parents and the court.
The goals of child custody mediation:
- To help you and your spouse agree on a Parenting Plan that is in the best
interests of your children.
- To help you and your spouse create a fair Parenting Plan, one that allows
you both to spend a good amount of time with the children.
- To help you work through your feelings of anger and resentment.
Note: This information is for parents who are not facing issues of spousal abuse,
child abuse, sexual abuse, stalking, harassment, or drug abuse. If you
or your spouse have a problem with substance abuse,
domestic violence, child neglect, or sexual abuse, it can be very unrealistic to create
a practical Parenting Plan with your spouse that works. You will need
to seek help from an experienced divorce and child custody attorney.
If a father is seeking sole custody or at the least, primary physical custody
of his children because his wife is unfit due to child abuse or neglect,
abandonment, drug abuse, or mental illness, it is possible for the father
to win in court. As a rule, the courts are interested in the children’s
best interests and if that means awarding the father custody, the courts
will act accordingly.
Rights of Unwed Fathers.
Looking for a Los Angeles child custody lawyer?
Contact Claery & Hammond, LLP to schedule a confidential, free case evaluation.