How to Get Full Custody as Father in California: A Complete Guide

Get the Bias You Think Exists in Family Court Out of Your Head

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.

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.

I will admit some people have an implicit bias. That is how you get stereotypes.

However, having implicit bias and actually letting it affect court decisions are two different things.

When fathers seek fully custody, a judge is likely not going to look at that request and think, "well, I really do not think dads should ever have full custody" and then rule accordingly.

Family Code 3040 Helps Fathers Get Full Custody

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 full 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 full custody of his child or children put on a persuasive case consistent with the facts and law. If you mentally defeat yourself before you step into a courtroom, you are likely going to lose when you get there.

A Father Must First Know What Full Custody Means

There is a big difference between joint and full custody (also called sole 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.

What 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.

Fathers Need to Look at the "Time" They 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 parenting guidelines help. Here are three of them:

• Orange County Parenting Guidelines
• Los Angeles Parenting Guidelines
• San Diego Parenting Guidelines

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 Joint or Full 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 joint or full 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 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 Full Custody as a Father When Faced With an Abusive or Neglectful Mother?

If the mother physically or emotionally abuses the children or neglects their basic care, you should request full custody.

You will need evidence of the abuse or neglect.

We discuss the evidence gathering process more below.

What makes these types of abuse and neglect cases different is the option to get law enforcement or social services involved.

If the mother is physically abusing the children or neglecting their basic care, consider whether you should contact the police or social services.

They may be able to help faster than the family court, especially in more serious cases.

Also consider that if you are aware of child abuse or serious neglect and you do nothing, it may be you who gets into the cross hairs of law enforcement or child protective services.

Parents have an affirmative duty to protect their children and parents who are aware of abuse and neglect, and do nothing, may risk losing their own child custody privileges.