How to get custody as a father? Whether that is full custody from the mother or joint custody with the mother, a father must plan and prepare carefully to obtain custody. We should know. We have represented many fathers who found themselves in custody battles, sometimes with an unrelenting mother, and we still helped those dads prevail.
What you read here is not a magical formula on getting custody. There is no such thing. Instead, this article will focus on the much needed dose of common sense and California law. Why? So that you do not allow yourself to get suckered in by those who oversell themselves as “fathers rights attorneys” as if they somehow have a special knowledge of the law or some secrets on how to get custody as a father.
Getting custody as a father focuses primarily on one thing – the children’s best interest. That best interest standard means the child or children become the court’s focus, not you and not the mother. And if the family law judge will focus on the children’s best interest, then you must too. How? Keep reading.
Get whatever bias you think exists in family court out of your head now.
If we are going to get anywhere, you need to do one thing first – if you really believe there is a bias against fathers in California family court, please get it out of your head. Of course, I refer to our family courts here in Southern California, where we handle cases. I cannot speak for every court in the State. And if there really was a bias, there is no way we would get the results we get for dads. My experience is fathers who claim a bias did not prevail in family court and one of two things usually happened. They either did not have the facts to prevail or they did a poor job in presenting their case.
Family Code 3040.
The first part of Family Code 3040 reads:
(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:
(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020, and shall not prefer a parent as custodian because of that parent’s sex. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order…”
The law specifically forbids bias. The reason a father who wants to get custody needs to let this issue go is it does nothing to help him with the ultimate goal. It either becomes a built-in excuse, a distraction or both. None of those help a dad who wants to get custody of his child or children put on a persuasive case consistent with the facts and law.
How to get custody as a father requires a dad to first decide on full versus joint custody.
There is a big difference between joint and sole custody (also called full custody). Joint custody can be shy of equal parenting time (although not by much) or equal parenting time. Sole or full custody means the father wants the much larger parenting time (typically 65% or more).
The strategy changes between joint versus full custody because, with full custody requests, family law judges will want to know why the father believes he is better suited to primarily care for the child. In other words, the judge will want to know why full custody to the father is in the child or children’s best interest. With joint custody requests, the focus is more on why it is in that best interest to share parenting time.
Is one much harder to get? That depends on the facts. If the mother and father are both good parents, neither is a danger to the child and both have the reasonable time to dedicate to their parenting, joint custody makes more sense. But if the mother refuses to co-parent, disparages the father to the child or children, makes false allegations of abuse or neglect or is alienating the children? Then the father should seek full custody.
What we do at our family law firm is evaluate the facts with the law and, in collaboration with the father we represent, decide together whether it makes sense to ask for joint or full custody.
Now, let us look at some specific considerations.
When evaluating how to get custody as a father, we need to look at the “time” you have for parenting.
The traditional American marriage still has a husband and father who works full-time and a wife and mother who either works less hours, earns less pay and/or does not work at all. While this is less common today compared to decades ago, it still pervades the majority of divorce cases we see.
For fathers who have full-time jobs and young children who are not yet in school, the practical problem and fear of not getting quality time with the children is an issue near and dear to the dad’s heart. Thus, it is important that fathers with full-time or heavy work schedules obtain a custody and visitation schedule that maximizes the quality time with their children.
What is quality time for fathers who want custody?
Quality time includes days that the father does not work such as weekends as well as evenings during the week. Vacation and holiday time is a critical part of a working father’s schedule. Depending on the children’s ages, frequent and regular contact (even in short bursts of time) may be a must to continue the bonding process and ensure the child does not become distant from the father. This is where the Orange County Parenting Guidelines which we reference and explain on this website, come in handy. We encourage you to read them. Even if your case is not in Orange County, we believe these guidelines will help you understand the different types of common parenting plans available.
What about custody for fathers when children are bonded with both parents?
In situations where both the father and mother work full-time and the children are equally bonded with both parents, no special preference should be given to the mother in the custody schedule. If two parents have very similar work schedules and it is otherwise in the children’s best interest to spend equal time with the parents, any day care or other childcare arrangements should be equally made between the parents so that both parents enjoy equal time with their children when they’re not working.
What about custody for fathers with heavy travel schedules?
For fathers who travel extensively due to their work schedules, flexibility and make up time is an important part of any custody and visitation schedule. If a father is going to miss one or more weeks of time with their children, a custody and visitation order can layout how the time will be made up after the father returns from the business trip.
Bonding with your children is a big part of getting custody for fathers.
A custody order with frequent and regular contact does not just happen because you want it. If, during your marriage, you have not spent very much time with your children and are not bonded with them, you face an uphill climb if you intend to suddenly, after separation, get 50/50 custody.
That however does not mean you should give up on your children and take whatever custody and visitation schedule is offered to you.
Fathers need to make their children a priority in their lives if they want custody.
For fathers in such a situation, it is time you make the choice. Are your children a priority in your life or not? If you answered yes to this question, you must start to act consistent with your answer.
How do you do this? You start by spending your actual visitation time with the children. That means you do not pawn off the children to your parents, daycare facilities or babysitters. That means you keep the children’s routines or add to them so that the children not only feel comfortable at your home but also look forward to coming there.
Fathers who want custody but do nothing when the mother refuses to co-parent and cooperate make a serious mistake.
In addition, so long as you intend to follow through, you must ask the children’s mother for additional time through a cooperative and reasonable tone. If the children’s mother refuses to agree to additional time, one of the worst things you can do is to do nothing. In such a situation, once you are able to establish that you spend time with your children and can handle the additional time, hiring an experienced Orange County child custody lawyer is a good idea so that you can bring to the courts attention all of these facts as well as the mother’s refusal to co-parent and act in the children’s best interest.
Remember that California Family Code 3020(b) specifically states that it is the public policy of this state:
The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except where the contact would not be in the best interest of the child, as provided in Section 3011.
Take those words seriously. It is the law.
How to get custody as a father when faced with the alienating or uncooperative mother?
This is the hardest thing a father who wants to get custody can go through. Unfortunately, although it is not necessarily gender specific, certain parents refuse to reasonably communicate, co-parent and even go as far as alienating the children from the other parent.
In such situations, your strategy may have to change if you intend to act with your children’s best interests in mind. Any parent, including a mother, who refuses to co-parent and alienates the children (which can come in many forms including false allegations of abuse as well as psychological abuse), should not have joint custody of the children.
These types of cases require discipline, diligence and a father with the courage to ask for full custody.
We believe parents who engage in such conduct are a danger to the children and, if the conduct does not stop, it may escalate as a child gets older, thereby causing a greater division between the non-alienating parent and child relationship.
For fathers who seek custody, there is good news. You have numerous options available to you including but not limited to:
- Using the family law discovery process to flesh out the mother’s allegations,
- Requesting and having the court order a forensic psychological evaluation (often called a child custody 730 evaluation),
- Having the court order a formal child custody investigation (called a CCI in Orange County Family Court), and
- The appointment of a lawyer for the children.
There are other options in addition to the above. Our family law firm employs these and other strategies for fathers who want to get full custody from mothers.
It is important for you to know, as a father, that if you do nothing, the chances of you being able to ever get joint or primary custody of your children may reduce significantly. That is because children who are consistently alienated from one parent overtime may, as they get older, not want to spend time with that parent and, once the child reaches a certain age, California law does allow the child to have a voice in the family law process and allows the child to state a preference in custody cases.
How to get custody as a father? What is your next best step?
Contacting our family law lawyers a good start to get your child custody case on the right track. Even if your case has already started and you believe is not going well, our attorneys can sit down with you, evaluate where you have been and help get your case in the right direction.
Call us today for an initial, affordable strategy session. We have three Orange County offices – Newport Beach, Mission Viejo and Santa Ana. We handle family law matters in Orange County, select Los Angeles County courts and Riverside’s central court.
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This article was first published on February 3, 2013 and was updated in October of 2017.