California Child Custody Myths and Dissecting Truth From Fiction

California Child Custody Myths and Dissecting Truth From Fiction

California Child Custody
Separating Fact From Myth
In California Child Custody Cases

California child custody, possibly more than any area of divorce and family law, is the subject of many myths and falsehoods. These myths that have become so ingrained with the general public and in the psychology of parents have caused poor parenting decisions in anticipation of separation or divorce.

If you have been a regular reader of this site you know we have gone at times to great lengths to dispel bad information that is out there about various aspects of California family law. 

In this article, we focus on California child custody because, after all, what is more important than your children and ensuring you take actions consistent with their best interest?

We hope you enjoy this article.

Myth: Gender matters to the family law judge when deciding California child custody cases

Truth: Gender is irrelevant.

Does that mean that it never happens? I certainly cannot speak to that issue because I have not sat and watched every single California child custody case. However, drawing from our own experiences and seeing what we see in family court, fathers, as one example, get the short end of the stick on custody cases not because of bias but because they come to court unprepared.

Now, this assumes that the father in the child custody case actually had a proper case to present to the court and actually had the facts in the case that merited his position. Complaining about a result when the dad didn’t earn another result is not bias. It just means he didn’t have the facts. But if he did and it was still a decision against him, it likely means he was not prepared in the presentation of his case. A skilled child custody lawyer helps in such a situation.

California Family Code 3040 states that custody should be granted in a certain preference and the first is to both parents jointly and it further states that the court “shall not prefer a parent as custodian because of that parent’s sex.”

If any parent prepares a case properly making sure that he or she has clear and verifiable facts, admissible evidence, exhibits and helpful witnesses that can testify consistent with the parent’s position, rarely if ever will the parent come across any perceived bias in California Family Court.

Myth: When a child turns becomes a teenager, he or she gets to decide with which parent he or she lives.

Truth: California child custody rules do not give any child the first and last word.

California Family Code 3042 made it easier for teenagers to express a preference to the court about their choice of living arrangements with one parent or another. However, despite the belief to the contrary, teenagers do not simply get to pick where they live and with whom they live.

The law that went into effect on January 1, 2012, which is more progressive but not entirely different than the former rules, simply make it mandatory that a judge listen to the child’s voice once a child turns 14 unless there is a strong reason consistent with the child’s best interest to do otherwise. If the child is under the age of 14 the court is not required to listen to the child unless it is in the child’s best interest.

These rules do not mandate that the court do as the child wishes. There is a difference between listening to a child and considering the child’s wishes and being required to do whatever the child wants.

Myth:Before there is a court order whoever has had custody gets to keep custody.

Truth: Status quo is a factor in California child custody cases but far from the deciding factor.

This theory goes something like this: whoever has had the child before the court actually makes a custody order is going to get the child in the custody order. In other words, many parents believe that possession of a child is in fact 9/10 of California child custody law.

Not only is that fiction, but it is directly contrary to California law if the informal custody arrangement has been of a short duration, the noncustodial parent has made reasonable efforts to see the child and there is no evidence that the noncustodial parent abandoned the child. In other words, for a child’s status quo with one parent to really take hold before there is a court order, it has to be of a lengthy duration and the other parent must have intentionally spent little time with the child.

Think about it logically for a second, what happens in a situation where one parent relocates from the family residence, moves more than a few miles away and for several months and even up to a year cannot see his or her child on an equal basis but still sees the child regularly? Do you really believe that parent is now forbidden from seeing the child on a 50-50 basis again? The law is not that draconian. In fact, California Family Code section 3046 specifically states, as relevant to this discussion and in part:

(a) If a party is absent or relocates from the family residence, the court shall not consider the absence or relocation as a factor in determining custody or visitation in either of the following circumstances:

(1) The absence or relocation is of short duration and the court finds that, during the period of absence or relocation, the party has demonstrated an interest in maintaining custody or visitation, the party maintains, or makes reasonable efforts to maintain, regular contact with the child, and the party’s behavior demonstrates no intent to abandon the child.

(2) The party is absent or relocates because of an act or acts of actual or threatened domestic or family violence by the other party.

(b) The court may consider attempts by one party to interfere with the other party’s regular contact with the child in determining if the party has satisfied the requirements of subdivision (a)…

Keep your chin up. You noncustodial parents have rights.

Myth: Parental alienation is impossible to prove so why even try.

Truth: Parental alienation is provable if you take it seriously by your actions.

Parental alienation is difficult to prove if you have failed to document it and have failed to do anything about it. However, even in those situations it is far from impossible.

Parental alienation often is a coercive and stealth form of emotional abuse. The child or children who are being alienated are often too young or too immature to realize what is happening. Parents who see their child alienated cannot simply shrug their shoulders and hope things change. Alienation is just as bad as physical abuse. The marks that it leaves on a child’s psychology can last a lifetime and cannot only affect that child’s relationship with the parent but also their own future intimate relationships.

The moment you notice alienation occurring, documenting it with the other parent through emails, intervention which should include witnesses or, if it does not stop, court intervention is a must. Parents who alienate children have an agenda and they generally will not stop until they have been successful at their psychological abuse. You have the power to put a stop parental alienation regardless of how it is being manifested, including overt alienation through disparagement, false allegations of abuse, or conditioning the child to believe that the other parent is acting inconsistent with the child’s best interest.

Myth: False allegations of abuse do not have any real consequences in family court.

Truth: False allegations of abuse have serious and severe consequences under California child custody law.

False allegations of abuse, whether it is domestic violence or child abuse, have a very real consequences in Family Court. In fact, experienced lawyers know that the consequences are not just discretionary but the California Family Code has codified specific punishments if the court finds willful false allegations of abuse.

Not only does the Family Court have the power to take custody away from a parent that makes false allegations but California child custody statutes even allow serious monetary sanctions against anyone who knowingly made the false allegations, the other parent, witnesses and even the other lawyer.

We have written an extensive article on the subject of false allegations of physical or sexual child abuse against a father but the rules apply just as much if a mother has been falsely accused of abuse.

Myth: Modifications of a court ordered parenting schedule require a showing of a significant change of circumstances.

Truth: Only modifications of physical or legal custody require such a showing.

Modification of a child custody or visitation order that does not amount to a modification of actual custody, referring to joint or sole legal or physical custody, does not require a showing of any change of circumstances. The rules can get confusing especially if there is a dispute whether the California child custody order was intended to be temporary or final.

We have written an extensive article on modification of child custody orders in California. Check it out for a more detailed explanation.

Assuming there is a final child custody and visitation order, here is what you should know:

Legal custody is either joint or sole and legal custody controls the decision-making process in the children’s lives.

Physical custody is also typically joint or sole and has to do with which parent has the most significant amount of time with the child.

However, changing a visitation schedule is completely different from changing custody. For example, if a parent has an every other weekend schedule plus a midweek dinner visit and wants to change the midweek dinner visit to a midweek overnight or wishes to extend the weekend to a Monday, that parent does not need to show that anything has changed since last court order. All that parent has to show is that it is in the best interest of the child or children to make that change.

The rules get fuzzy when a change of visitation essentially becomes a change from sole physical to joint physical because of the significant amount of time increase being requested. This is where the experience of a talented child custody attorney really helps.

Myth: The working parent always gets the short end of the stick on custody cases.

Truth: The working parent has just as much rights as the non-working one in California child custody cases.

The theory behind the working parent is very similar to the theory behind gender discrimination in family law. Typically, the working parent has simply failed to prepare his or her case well enough in front of the judge.

Depending on the age of the children, a working parent has the exact same rights to equal time with the child as a nonworking parents does. Practically speaking, it may be difficult for a full-time working parent to have an equal schedule with the child. But, that is nothing more than a function of reality. For example, if a child is two years old and one parent does not work while the other does, chances are pretty good that the nonworking parent may get more time with the child.

However, if the nonworking parent has the ability to work and the opportunities for work out there, he or she has no right to fail or refuse to get a job and in such a situation the nonworking parent has the option, within the context of the support aspect of the case, of asking the court to order the nonworking parent to gain employment and start to provide financially for the child.

In addition, as a child gets older and especially when they get to a school attendance age, a working parent’s schedule becomes less relevant because after school care can address the child’s needs before the working parent gets home and gains custody of the child.

Now, if you happen to be a parent who works very long hours, don’t expect the Family Court to have too much sympathy for you. That is a lifestyle you choose and if work takes priority over your children, the court is not going to prioritize the children for you. That the choice you must make before you ever step foot into a courtroom.

Myth: High conflict child custody cases leave little hope for a co-parenting and communication.

Truth: A California judge can make orders that focus on co-parenting or parallel parenting and communication.

High conflict child custody cases are difficult on the parents and children. They can leave a family decimated if the high conflict child custody case has resulted in toxic litigation where the parents have engaged in actions such as parental alienation, false allegations of abuse and have immersed their children in the custody case.

However, all is not lost. The California Family Code gives courts the specific authority to order counseling in child custody cases for one or both parents or the parents and the children for up to a one year period. This counseling can be ordered to help parents and the children begin to recover from the conflicts that have torn their families apart.

The court also has the power to order communication through constructive means that do not necessarily force the parents to face each other until they’re ready. These include communication through programs such as ourfamilywizard.com.

In addition, the court has the power to order parenting classes, a parenting coordinator, special masters to oversee conflicts between the parents and several other vehicles to help parents who show little ability to coparent and communicate to begin to learn to do so.

In addition, high conflict child custody cases can result in parallel parenting plan orders.

Myth: Parents can violate each other’s court ordered custody rights without any real consequences.

Truth: California child custody rules spell out punishments for violations of a parent’s court ordered rights.

This is an absolutely true statement if the parent whose rights have been violated does nothing. However, if the victimized parent is willing to take his or her rights seriously, the consequences to the other parent for his or her misconduct can be serious and severe.

Violations of the parent’s legal and physical custody rights as well as parenting time can result in the court making modifications to custody and visitation and either limiting the offending parent’s rights or, in extreme cases, even taking custody away from that parent.

In addition, willful violations of court orders which include orders of joint legal and joint physical custody or parenting time can be punished by contempt. Family Law contempt orders may carry with it fines, community service and even jail time.

The court will take violations of your rights seriously when you take violations of your child custody rights seriously.

Myth: You don’t need an attorney to represent you in a California child custody case.

Truth: You need an experienced child custody lawyer if you have a contested case.

It is not that complicated. If you and the other parent have a disagreement regarding custody and visitation and that this agreement cannot be resolved between the two of you, the experience of an intelligent and hard-working child custody lawyer can make a tremendous difference in your life.

You would not ever consider performing surgery on yourself. When you have a serious custody dispute, the advice of a child custody lawyer will help you frame the issues, focus on the facts that matter and disregard the ones that don’t, give you a preview of what things the court may consider to be important to it, make efforts to settle the case which if successful will help you avoid court and, if unsuccessful, ensure that you walk into court prepared to present the best possible case with your set of facts.

If you’re interested in obtaining a result that is truly consistent with your child’s best interest, representing yourself may be just about the worst thing you could do. Tread lightly and be cautious before you make such a decision. Once a court order is made regarding custody and visitation, a precedent has been set and the events that occurred prior to the court order may have little to no impact on any future custody decisions.

Got questions? Contact our child custody lawyers. We are ready to speak with you about your case and see how we can help.

About the Author

B. Robert Farzad

B. Robert Farzad is the president of Farzad Family Law, APC. Mr. Farzad is actively involved in the firm's divorce and parentage ca...
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