Fathers’ rights in California is an interesting topic because, too often, fathers don’t appreciate that they have the exact same rights as the mother in a divorce or family law case. That leads to either an over aggressiveness or the failure to preserve and protect rights. In this article about fathers’ rights, we are going to discuss the top mistakes that fathers make in divorce cases and how fathers and husbands can avoid making them.
If anything we have written applies to you, don’t panic. Mistakes can often be fixed. Our attorneys are available to speak with you about your specific case. If your matter is in Orange County, we offer an affordable, initial strategy session that will answer your questions and get you headed on the right track with your child custody matter.
1. Out-spending the wife or mother in the illusion this will help.
Divorce lawyers, like any other profession, have some bad seeds. Some of those that represent fathers encourage and embolden dads to try and outspend the mother in the divorce litigation to try to break her financially. They give this advice under the guise of fathers’ rights. When such ridiculous advice is given, it is generally for the lawyer’s self-interest as opposed to his or her client’s.
The California Family Code lays out the road-map for divorce and family law cases including all the support, property and custody issues. Over-zealously litigating cases generally causes one or a combination of things and none of them are consistent with a father’s rights:
- First, it exposes you to monetary sanctions by the court for failing and refusing to act reasonably and compromising where California public policy requires it. California Family Code Section 271 specifically states punishes a spouse that engages in unreasonable behavior that drives up the costs of litigation and is not consistent with California’s public policy in attempting to resolve disputes. The reason this statute exist is to punish spouses or parents that violate this public policy.
- The second consequence of trying to outspend your wife is an attorney fee motion based on your spouse’s need and your ability to pay. Family code 271 is not the only attorney fee statute in California. Separate from it, the California Family Code sections 2030 through 2032 allow for attorney fees based on need and ability to pay for divorce cases. In other words, by acting unreasonably and over-litigating the case, you’re not advancing your rights as a father – what you’re essentially doing is burning your own money by giving the mother or wife the ability to go to court and ask for fees just so she can defend the overzealous litigation.
- The third potential for overzealous litigation in family law litigation is the loss of credibility. Your credibility in the divorce case is your most powerful tool at your disposal. If you take unreasonable positions during the divorce or over-litigate and the court sees that, your credibility drops. If you continue to do so, not only do you expose yourself to sanctions but that loss of credibility may cause discretionary decisions by the court to go against you. Want to read about a real life example of this? Check out the appellate case of Andrea and Jeffrey Barth.
The bottom line is if there is an area in your divorce case, and in family law there are many, that requires the court to exercise its discretion and only an abuse of that discretion is appealable, the courts could very well use that discretion against you because the court finds that your wife or the mother has more credibility than you do. This could seriously and adversely affect you on both financial issues as well as custody. In short, the biggest detriment to your rights as a father becomes you.
2. Over extending yourself on financial issues.
The second mistake that fathers and husbands make is the opposite of the first one. There is such a thing as being too generous and as a result being shortsighted in your own future and plans. This can occur in many situations but the following are the most common.
Fathers and husbands far too often pay for both the court ordered support and their wife or the mother’s personal expenses that were not court ordered. By doing so, they put themselves in a difficult financial situation and eat away at their savings or, just as bad, go into debt.
Spousal support orders are intended to maintain the status quo for your wife and the ultimate order is to maintain the marital lifestyle depending on the length of the marriage and other factors. If you pay more on top of that you are essentially creating a different and upgraded status quo that may hurt you later on, not just financially but also by dissuading your spouse from becoming self-supporting. In other words, do you know a great way to trample on fathers’ rights? Put yourself in a situation where your spouse is unmotivated to get a job.
3. Surrendering your fathers’ rights on child custody issues.
The third mistake sees fathers surrendering their rights on child custody and parenting time. We have seen fathers come to us after they have done this, not only deeply regretting their decisions but also asking if there is a way to fix it. Most of the time, we can find a way. But it is better that you learn from mistakes other fathers have made regarding their rights, instead of trying to fix the mistake.
“But the system is biased against dads,” I hear fathers say. Whoever has told you that the system is biased against you and you don’t stand a chance to share custody of your children is wrong… and not very bright. When we talk about fathers’ rights, we’re not referring to protecting against some perceived bias against dads. What we are referring to is a father’s responsibility to take his rights seriously and enforce them. California law already states that it is unlawful to discriminate against anyone as a result of gender and give any preference for gender in a divorce and custody case.
The law is already neutral and unbiased. To the extent the judge refuses to follow the law and there is a preference being given, you do have rights. Fathers have to recognize that trial court judges are not the last word on custody issues and if they make a serious mistake and abuse their discretion’s on custody, you have family law appellate rights.
But separate from that, how you litigate the case and the positions you take are so critical to how your rights are enforced. For example, if you can dedicate 50% of the time to your children and there is no recent history of domestic violence, substance abuse, child abuse or anything else that would objectively impact a court’s decision to give you joint physical custody and equal parenting time, it is in your children’s best interest to spend that time with you.
Children who spend less time with their father unnecessarily suffer as a result. If you love your children and you want to spend time with them and you have the time to spend with them, your focus should be ensuring that you properly explain your factual and legal position to the court in a logical and reasonable manner. Demonstrate to the court why the time is available for you. You do that through an experienced and intelligent family lawyer.
Too many times, fathers assume the mother should have primary custody because she’s a mother. Certainly, if you work full time and the mother does not and it is the beginning of a family law case and you are dealing with very young children who are not yet in school, it may be difficult to get you 50% custody. That is because the mother simply has a significant amount more time than you do and that has been the status quo leading to the marriage.
However, if the mother voluntarily starts working or is ordered to get a job and if you are able to make adjustments as necessary to your schedule or as the children get older, it is incumbent upon you to take increased parenting time seriously. You can always seek a modification of parenting time by showing it is in the children’s best interest and without having to show that there’s been a material change of circumstances since the last order.
And that brings us to the main point of custody – it’s all about QUALITY time with your kids. If you love your children and want to show them that, then it is all about the one-on-one time you spend with them. If you can get a custody and visitation order that maximizes your quality time with the kids, then you have taken giant strides towards protecting and preserving your rights as a father. That is true fathers’ justice.
4. Failure to ask for a modification of orders when necessary.
For reasons I have yet to understand, far too many fathers who can no longer afford support orders stop paying support instead of going to court for modification. It is as if they think that the child support or spousal support order is somehow going to take care of itself or everyone is going to forget about it if they stop paying it long enough.
Attention husbands and dads – exactly the opposite is true. The failure to pay court order support can devastate you financially. Not only does the support amount place interest and penalties on top of the principal amount you owe but you are exposed to jail time for failing to pay support.
Seeking a modification is simple, straightforward and can be very affordable. It is certainly significantly more affordable than not paying support and letting the numbers add up, only to face potential financial devastation later on.
How are modification made?
In child support cases, that is one or a combination of your income dropping, the mother’s income increasing or the parenting time with the children changing such that you have more time with the kids.
What about spousal support modifications? Assuming that your last order preserved the court’s power to make modifications, it is a material (significant) change of circumstances which includes a reduction or increase in income or other events that are significant to your or her finances.
Child Custody & Support
On the issue of children and custody and its overlap with child support, the mistake we have seen fathers make before they come to us is to rely on verbal agreements with the mother regarding parenting time modification. One example of this is when the father is paying child support based on a lower percentage of parenting time than what he is really exercising. For example, the father’s child support payment may be based on a 20% parenting time when the father in actuality has been spending far more time with the kids. In this respect, the father is being shortchanged in two ways. First, he doesn’t have a visitation order that is consistent what is really happening which means if the mother decides one day to change things back to the court order, she can do so with relative ease and simply deny the father visitation. In addition, the father is overpaying child support during the time he is spending more time with the kids.
How does the dad fix this?
Once a new status quo has been established (which can take as little as a few weeks), the father can simply seek a modification of child support and custody or parenting time so that what actually is happening is court ordered and the father’s rights are preserved. In addition, the father will not have to pay unreasonable child support that is based on a percentage of parenting time that no longer applies.
What’s next for you, dad?
Do yourself and your children a favor. Pick up the phone and call or email us. Take advantage of our affordable, initial strategy session to talk about your specific matter and answer your questions. We are experienced and talented lawyers and we want to help you preserve your rights as a father.
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