What are my rights as a father?
Child custody cases in California is difficult to navigate for fathers. Questions about a father's rights in California gets different answers from different people and most dads are not clear what their rights are. Some even believe they don't have any. If you have come here searching for the answer to what your rights as a father are in California, I have answers and some good news.
A father's rights in California on child custody cases and every other aspect of divorce and family law are identical to that of the mother.
Are you surprised? Did you think your paternal rights as a father were less important?
You might have thought that because I am sure you have spoken to at least one person who has told you fathers get screwed in California family court. While the person may not have been that blunt, I hear this all the time from prospective clients who call me. Fathers tell me that they have heard dads do not get the same treatment in family court as mothers or that father's rights in California is often trampled upon.
We have previously discussed how a father can get custody of his children and we have even made a list of the top mistakes fathers should avoid in divorce and child custody cases.
In this article though we are going to go a little bit deeper. We are not just going to talk about legal rights that fathers have in child custody cases in California but also on support issues.
Divorce or paternity (for single fathers) actions are not a doom and gloom scenario for dads like you. Just because you are a father in California, and especially if you are the breadwinner, does not mean you get the short end of the stick when it comes to seeing your children, and paying or receiving support. There are things you can do to protect yourself and it's important that you know what your rights are as a father in California with all of these issues.
If you have questions about your rights as a father, contact our experienced family law attorneys.
What are my rights as a father in California regarding legal custody of my children?
Joint legal custody in California - what is it?
Joint legal custody in California is all about share and share alike. It is about sharing information related to the child and making decisions mutually as opposed to one parent making important decisions in a child's life. Joint legal custody includes decisions and sharing of information about a child's health, safety, education and general welfare.
Your rights as a father to joint legal custody in California
California law favors joint legal custody for parents. California law explicitly prefers parents to share in the decision-making process related to the child. Your rights as a father include being involved in every important aspect of your child's life. This includes but is not limited to:
- Decisions related to the child's school and extra curricular activities.
- Decisions related to the child's health, including doctor visits and medication.
- Decisions related to non-school related activities.
- Decisions related to the child's religion or whether your child is without religion.
- Being listed on school and medical records and having the right to receive information related to your chid.
- Decisions related to the child's travel including where the child will live.
Violation of a father's joint legal custody rights and what you can do about it
Your rights as a father to joint legal custody should be taken very seriously. If the mother of the child makes decisions related to the child without your input and consent, in violation of a joint legal custody order, you have many rights available to you. These rights include but are not limited to a California family law contempt of court action against the mother for violation of your joint legal custody rights and a request to modify custody if the violation is serious and continues. You have the right to seek attorney fees against the mother if she has the ability to pay.
What are my rights as a father in California regarding physical custody and time with my children?
Physical custody in California - what is it?
Physical custody is a label attached to court orders. A parent who spends a significant amount of time with a child generally has joint physical custody. While there is no exact percentage for what a significant amount of time means, it is generally over 30% and typically 40% or more.
However, time spent one-on-one with the child is not the only factor. Some parents may not spend 40-50% of the time with the child but they are actively involved in the child's life including in the child's school and activities. This participation is relevant toward the label of physical custody. That is why it is best not to only look at percentages but also take other participation into consideration.
The California family law order will label whether the physical custody is joint or sole. Sometimes, it is left out entirely. Other times, a "primary" label is attached.
Your right as a father to joint physical custody in California
You have the right to have frequent and regular contact with your child. While parents should not get overly caught up in labels such as joint or primary physical custody, you should make sure as a father that your rights to this frequent and regular contact is secured in a court order.
Parenting time and schedules for dads
There are many schedules used in California child custody cases. The schedules promote frequent and regular contact between the parents and the child.
But be careful - do not become an every other weekend dad if you have more the time to spend with your child. While we recognize that working fathers sometimes cannot handle a 50-50 timeshare, there's no reason to accept anything less than that if you and the mother are on equal footing and are able to equally care with the child. And the choices are not every other weekend or 50/50. There are plenty of acceptable schedules in between that will help maximize your time with your child.
Let me give you a common example.
Assume both the father and the mother work similar hours. The child is in school. Both parents have the child's best interest at heart and neither parent engages in abuse or neglect. Your hours as a father may be a little bit longer than the mother. She may get home at 4 o'clock and you may get home later.
There is no reason for you to not have 50-50 custody in this situation. Yet, we see fathers in such a situation simply accept an every other weekend or similar parenting time. The fact that the mother has a few more hours per week of time to spend with the child does not mean that you should lose an equal parenting timeshare. The discrepancy between your ability to spend time with the child versus that of the mother has to be significant for it to make a difference.
You may wonder what these different schedules are? Take a look at the Orange County Parenting Guidelines and you will see different schedules for different ages of children.
- Parenting schedules for children under the age of 3.
- Parenting schedules for children 3 to 5 years old.
- Parenting schedules for children 6 to 11 years old.
- Parenting schedules for children 12 to 18 years old.
Violation of a father's court ordered parenting time and what you can do about it
Just like violations of legal custody, violation of physical custody and parenting time must be taken seriously. If a mother is violating a court order by refusing to exchange a child when the court order requires it, or is otherwise interfering with your parenting time, you can:
- Document the violations with the mother, preferably in an e-mail;
- Request that the mother change her behavior and confirm her agreement to change in writing to you; and
- If the mother refuses to do so and continues to violate your custody rights, file a child custody modification request, a contempt action against her or both.
We take violations of physical custody rights and parenting time very seriously. We suggest you also take your rights as a father seriously if you intend to make sure the mother understands that you will not tolerate misconduct.
False abuse allegations or parental alienation
If you have been falsely accused of domestic violence, child-abuse or the mother is engaging in parental alienation, you have rights as a father. We have discussed these issues in very informative articles we have written on the subject. Here are two of them you will find helpful about this specific topic:
- What is parental alienation? This article discusses parental alienation and what you can do about it.
- Dealing with false allegations of abuse in a child custody case. This article discusses your rights to combat such allegations and beat them.
What are my rights as a single father on these child custody issues?
There are no differences in anything we have discussed or will discuss. Your rights as a single father going through a paternity action versus a married one going through a divorce are the same. You have the same right as a father to see your child, spend time with him or her and be involved in raising your child. Don't sell yourself short because you are not married to the mother. It makes no difference under the law.
What are my rights as a divorced father in California who didn't get joint legal or physical custody?
Child custody orders are not permanent. They are sometimes called "final" custody orders but that is an oxymoron. Even child custody orders that come at the end of a divorce trial are modifiable.
If you are looking to change a sole legal or physical custody order to a joint order, you need to show a material change of circumstances since the last order. That is not hard to do. If you have more time to spend with the child, the mother is frustrating your visitation or anything has occurred that justifies a modification request, you can proceed forward.
If you are looking to increase your time without changing the labels of custody, you don't even need to show a change. That becomes a simple best interest standard.
What are my rights as a father of my unborn child?
An unborn child obviously cannot be anywhere other than the mother's womb so child custody and parenting time don't apply until the child is born. However, an unborn child can be the subject of a child support order. California law states that child support obligations can attach even before the child is born.
For a father, the most important thing is to stay involved in the process and if the mother excludes you from it, hire an experienced child custody attorney before the child is born to prepare the paternity petition (if you are unmarried) or divorce petition (if you are married and intend to proceed with a divorce). If you are in the unique situation of being married but do not want to file for divorce, you have rights as a father to proceed with a child custody case only. Your rights as a father upon that child's birth is immediate. You have the right to seek custody and visitation orders.
The issue of a mother who intends to give up the unborn child for adoption is more complicated and beyond the scope of this article. We will write an article about that topic in the near future.
We encourage you to read our article on a child born out of wedlock and a father's rights and responsibilities.
What are my rights as a father paying child support in California?
Father's rights in California for higher income earners
If you are the higher income earner and the one asked to pay support, you do have rights. California law states child support must be calculated consistent with guideline standards, absent limited exceptions. These guideline standards have automated the child support process so certain factors into the computer program generate the child support number.
If you have a mother who is refusing to work, you have the right to get a court order that requires her to make a good faith effort to become employed. This includes searching for work, sending out resumes, keeping track of them, and going on job interviews.
Being a stay at home mom is not a legal right. While some may take longer than others to get back in the workforce, especially if the mother has been out of the workforce for a long time, it is inappropriate to simply refuse to look for a job and refuse to make good-faith and reasonable efforts to become employed.
You don't have to take my word for this. California Family Code 4053 makes this explicit.
It is both parent's responsibility to financially provide for the child, not just the father.
Dealing with a mother who refuses to work
If you are dealing with a mother who refuses to work, request an imputation of income in the child support case . Imputation of income is appropriate when the mother has the ability and opportunity to work but is refusing to do so.
Dealing with a mother who uses the children as leverage to get more support
Mothers who use children as leverage are dangerous. Children are not property and they are not pawns. If the mother of your child is using the child as leverage in financial negotiations, you should bring this to the court's attention. The way we have effectively done this in the past is to document the mother's misconduct to her or her lawyer. That way, when we go to court, we have a paper trail that shows misconduct and her refusal to change.
What are my rights as a father in California if I am behind on support payments?
If you are behind in your child support payments, you have the right to ask the court for a payment plan for you to pay it back. Fathers sometimes get themselves into trouble by not making court ordered child support payments and also not asking the court for help.
If you have become unemployed, do not stop paying child support. It is a foolish decision that could get you into more trouble. Instead, immediately file a child support modification request with the help of an experienced California family law attorney.
If you have fallen behind on child support for several months, do not simply sit on your hands and fail to take action. Immediately ask the court for a payment plan on the arrears amount that you owe while seeking a modification if you have legal grounds. The help of an experienced child support attorney is a must in such a situation.
What are my rights as a father in receiving child support in California?
If you are a lower-income order which also means the mother is the higher income, you may have a right to child support depending on several factors including your time with the children.
Your rights as a father are no different than a mother's rights when it comes to child support. California law does not discriminate by gender and specifically prohibits it. If the mother refuses to pay you child support even though she is legally required to do so, you have the right to open a child support case, ask for and receive child support, garnish the mother's wages if necessary and enforce your rights if the mother refuses to pay support.
Contact us regarding your rights as a father in California
It starts with a phone call to our experienced divorce and family law lawyers. Our law firm is respected, trusted and has the time and resources to help fathers just like you obtain fair child custody and child support orders. To read reviews of our divorce attorneys, visit our testimonial pages.