When the subject of parental rights comes up, what do you think about? The rights of parents to make decisions on their children's behalf and be actively involved in the care and raising of their children?
Now, what if I asked you the same question but changed parental rights to paternal rights? Did your answer change? I wouldn't be surprised if it did and that is why I am writing this article about paternal rights. Because it shouldn't.
Paternal Rights and Legal Custody
Legal custody relates to the decisions and choices we make on behalf of our children. These are health, safety, education and welfare. It also includes decisions on religion and anything else that touches on the important aspects of a child's life, from those that are life and death to something as simple as extracurricular activities.
Too often, fathers forget the "joint" aspect of legal custody. Paternal rights are specifically recognized in joint legal custody laws. That means, unless there is a compelling reason consistent with the children's best interest to do otherwise, a father's paternal rights includes being involved in decisions that involve their children.
Fathers should not give up their paternal rights to joint legal custody just to get a custody or divorce case resolved, because it is easier or more convenient for the other parent or because the father feels the other parent can make decisions just fine without the father's input.
Fathers especially do such things with younger children.
If you give up your paternal rights to joint legal custody, you are sending a message to the Court that having joint legal custody is not important to you. That is not the message you want to send if you ever need to come back and ask the court for joint legal custody, especially as your child gets older and his or her academic, employment, and social status becomes a concern to you.
Paternal Rights and Physical Custody
Physical custody is the right to parenting time and care of the children. California law defaults to frequent and regular contact that is consistent and gives each parent quality time with their children. That means, again, unless there is a reason to do otherwise, physical custody should be "joint"
Joint physical custody simply means each parent's right to jointly share in the care and custody of their children. Joint physical custody doesn't necessarily mean 50/50 custody although 50/50 is of course joint physical. Either parent may have less than 50/50 but close enough to it that it qualifies as joint physical. We have seen parenting time as different than 75/25 be "joint" physical custody.
There are two important things fathers should know about their paternal rights and joint physical custody:
Quality matters more than quantity. We have discussed this issue in articles we have written about Father's Rights in California. Fathers (and parents in general) get far too caught up in percentages and numbers when it comes to custody time with their children. Equal or greater quality time is more important than equal actual time if children are truly a priority.
Children are not leverage for financial issues. This shouldn't have to be said but we'll say it anyway. If the goal is to obtain more parenting time just to reduce child support, the father is wasting his time money and that of the court. Paternal rights don't even factor in here. Eventually, if the time ordered is not actually spent with the child, the court not only has the discretion to take that time away from the father but a bridge may have been burned, making it difficult to persuade the court to restore that lost time.
Enforcing Paternal Rights
An important part of paternal rights is enforcement of those rights. If a mother directly or indirectly (using others as a catalyst) violates your paternal rights in a court order, you have several options available to you. We prefer the following order of events although the facts of each case are different and may require a modified approach:
Meet and confer: You have a court order and you can immediately rush to court. That is even appropriate in certain cases but not most of them. The term "meet and confer" is often used in family law litigation and it refers to the parents attempting to informally work out disputes. If paternal rights are being violated (joint legal custody rights or interference with parenting time), documenting the violations and trying to resolve it (and avoid future ones) will either result in a successful resolution or the Court seeing that you attempted resolution. Why is the latter important? Keep reading…
Court intervention: If the meet and confer process was not successful, court intervention is the logical next step. And if you have attempted to meet and confer and documented it, you walk into this part a few steps ahead. First, you can show the court your reasonableness. Second, you can show the court the other parent's lack of reasonableness. Family law judges are human beings and if they see a parent walk into court after an attempt at resolution, they may exercise their "discretion" more favorably toward you. But that's not all…the court may also be willing to award you attorney fees against the other parent for forcing a court appearance that should and could have been avoided.
Contempt: A violation of a custody court order is not just a violation of your paternal rights but it is also a crime. "Contempt" is a process by which you ask the Court to find the other parent willfully violated a court order and order the other parent to (a) serve a jail sentence (generally 48 hours on a first offense), (b) pay fines and/or (c) complete community service. Contempt is a process you can initiate by filing a contempt "petition." Contempt is very effective to deter future misconduct but, in our opinion, should be used in serious cases or those that involve repetitive violations of court orders.
Sole Legal and Physical Custody Orders for Fathers
Yes, fathers…you can and should seek sole legal and sole physical custody if the mother is acting inconsistent with the child's best interest and will not relent. As just a few examples, our family law firm has successfully obtained sole legal and physical custody orders for fathers in various situations. Check out the reviews of our family law attorneys, as written by our clients.
Good Mothers and Good Fathers Raise the Psychologically Healthy Children
Whether you call it paternal rights or father's rights, neither is anti-mother, anymore than mothers who enforce their legal rights are anti-father. This perception created by unscrupulous lawyers who have no business calling themselves father's rights attorneys has caused some dads to believe there is some terribly inherent bias against them that requires them to be over the top aggressive and unreasonable. That is nonsense.
Children need two good parents and when either parent violates the other's rights and attempts to resolve it are not successful, the court should get involved. Fathers and mothers equally have those rights. The law commands it that way.
Got questions? Contact our child custody lawyers today.
We have even more for you to read…do you have a case that involves parental alienation and you need help to stop it? We have successfully litigated such cases on behalf of parents. Are you facing false allegations of child abuse? Then take the time to read the article we linked to learn how to defend such cases and win.