HOW CAN A FATHER GET FULL CUSTODY OF HIS CHILD?

Fathers are entitled to seek full ("sole") custody of a child if it is in the child's best interest

Full Custody for Fathers

How can a father get full custody of his child?

Usually when a father asks this question, something went wrong in his relationship with the mother. I don’t refer to the relationship in a break-up sense but more how the mother and father will parent their children. Fathers think about getting full custody of the child because the mother has done something that caused the father to believe she intends to withhold or limit contact with the child.

So let’s talk about those situations and how we, as experienced California family law attorneys, deal with them.

How can a father get full custody of his child if the mother withholds contact?

There is a difference between withholding and limiting contact. There is also a difference between doing so reasonably versus unreasonably. Reasonably means the mother has an objective and valid reason to believe the father is a danger to the child. In this article, we focus on the unreasonable reasons which are simply unacceptable and seek to harm or sever the father – child relationship.

Mothers commonly take the unreasonable course immediately after a breakup. They do this when the father and mother stop living together. They play a game of keep-away with the child. The reasons may be many. They include but are not limited to:

  • anger or bitterness over infidelity or the break-up in general,
  • immaturity (common among young parents), or
  • unhealthy control by the mother’s parent or parents over her life.
  • Sometimes, the mother is simply unkind and malicious.
  • These are not child focused reasons.

Fortunately, California law protects fathers in such situations.

California Family Code 3046

Family Code section 3046 states, in part:

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)…

What that means for a father is simple

Just because there was a temporary relocation does not mean the father abandoned the child. Relocation does not mean there is a new status quo in parenting time.

The father must be vigilant in making sure he does not allow the lack of contact to continue for months. He should hire a family law attorney immediately to file the appropriate petition, request for order and obtain a court date. Smart family law attorneys also help the father document the mother’s misconduct. That way, by the time they appear in court, there is a clear paper trail of that misconduct. Documenting it may have an even greater benefit. The mother may get smart and allow contact immediately for fear of how she may look in court. Either way, it is a win – win situation for the father.

Unreasonably withholding contact is not in a child’s best interest

A father can use a mother’s refusal to allow contact to show the court how she is not child focused and instead acts inconsistent with the child’s best interest. The law requires family courts to focus custody decisions on a child’s best interest. When a father wants full custody of his child because the mother withholds contact, what should he do? He should point out why that withholding is not in the child’s best interest. Here again the California Family Code helps.

Family Code 3040

The first part of Family Code 3040 states:

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:

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 code includes frustration of parenting time as a factor when the court decides how to divide parenting time. Did you know that? A lot of fathers in California do not realize that and therefore do not use it effectively in their own case.

How can a father get full custody of his child when the mother alienates the child?

Parental alienation is a stalker. It slowly and sometimes decisively destroys a father-child relationship. Mothers and fathers engage in parental alienation. It is not gender specific. Usually, a parent who engages in that conduct has one goal – to harm the relationship between the parent and the child. They seek to do damage to the point where the child no longer wants to spend time with the other parent.

Our family law firm has seen horrible parental alienation situations. They take many forms. Per our article on parental alienation awareness:

  • “Disparaging comments about you or about your significant other or close members of your family;
  • Trying to replace your role as a parent by infusing another into that role;
  • Undermining your parental discipline and authority;
  • Playing the role of the victim to the children, with you as the perpetrator; or
  • Making false allegations of abuse against you.”

What can a father do in such a situation?

We cannot emphasize enough how important early action is in parental alienation cases. If you, as the father, sit on your hands and hope, wish or think some minimal effort you make will make it stop, you are kidding yourself. You may set yourself up for a point of no return with the children. They may refuse to spend time with you because the mother effectively alienated them from you.

In such a situation, it is a complete crapshoot whether reunification therapy will work. Immediate court action is sometimes necessary.  The father should enforce the court orders. By enforcement we mean going to court and seeking a modification proceeding or even a family law contempt action if the mother violated the court order.

Sometimes a minor’s counsel or a court-appointed child custody evaluator flushes out parental alienation. But those are not a substitute for your vigilance. To learn more about child custody evaluations (called 730 evaluations) in family law cases, check out our guide titled What is a 730 Evaluation and What Every Spouse or Parent Must Know.

How can a father get full custody of his child when the mother is an unfit parent?

Notice in the above scenarios we did not get into the mother’s actual parenting of the child. We have seen mothers who withhold or limit contact but otherwise take good care of their child. We have seen mothers who alienate the children but from the outside looking in, a person would never know that is happening. A lot of these mothers are actually good caretakers but it is their anger, bitterness or just evil motivations that drive them to do the things they do.

So what happens in the scenario? Where a mother is not withholding contact, is not limiting contact, is not engaging in parental alienation but is simply unfit to be the primary parent?

California family law does not allow family law judges to discriminate in custody cases on the basis of gender. If a father is clearly the better parent and it is in the child’s best interest for the father to have full custody of his child, that is exactly what the family law court should order.

A mother’s unfitness can come in many forms. We summarize a few of them below.

The continual or habitual abuse of alcohol or drugs

Drugs include prescription medication. If the mother has a substance abuse problem, whether the substance is alcohol, illegal drugs or prescription medication, that mother may be unfit to be the primary custodial parent. Do not mistake this for a mother who had a substance abuse problem in the past but has since recovered. We’ve noticed family courts are forgiving of a parent that used to suffer from substance abuse but took the necessary steps to stop the abuse.

Domestic violence

Domestic violence is another issue that may make mother unfit to care for the child. This is especially true when the mother engaged in domestic violence against the father and the court made a finding of domestic violence against the mother. This court may be the family Court within the context of a restraining order or criminal court within the context of the mother’s arrest, prosecution and conviction for domestic violence.

It is beyond the scope of this article to explain how domestic violence and child custody affect each other. We highly encourage you to read the article we wrote titled What Impact Does A Finding of Domestic Violence Have on a California Child Custody Case?

Inability to take care of the child’s day-to-day needs

For a father to get full custody of his child does not require the mother to engage in willful misconduct. If the mother is unable to take care of the child’s day-to-day needs but the father can, it is appropriate for the father to get full custody. Failure to care for the child’s day-to-day needs includes failure to properly perform the following:

  • grooming,
  • feeding,
  • housing,
  • attending to educational needs such as helping with homework and ensuring the child attends school on time, etc.

There are all appropriate factors. The question we ask is, “how is the mother caring for the child?” “Does she attend to the child’s health, safety, education and general welfare on a competent and consistent basis?” If the answer is no and the father is able to provide for such needs, then full custody may just be the answer.

How can a father get full custody of his child by getting temporary orders?

Family courts make child custody decisions on both a temporary basis and at the end of the case by a judgment. The judgment is not really final because the proper circumstances justify a modification.

For temporary orders, fathers file a request for order and obtain a hearing date. A request for order triggers a court date set by the court clerk and a mediation date that precedes the court date.

We will not go into detail in this article about the mediation process and the actual request for hearing. You should read our wonderful guide on California child custody laws to learn more about that.

Fathers should not be crazy enough to represent themselves at these hearings. Experienced representation in our opinion is a must. It can increase your chances of success. An experienced family law attorney can usually present a more persuasive case, both factually and legally.

How can a father get full custody of his child at the trial stage?

Temporary orders come before the judgment. Regardless of what temporary orders a court made, a father may seek full custody of his child at the judgment stage. Trial is the judgment phase. The trial is the final hearing before the court pronounces a judgment.

Trials are complex and usually involve testimony and introduction of other evidence. Similar to request for order hearings, a father should not represent himself. He should always have experienced and intelligent family law representation.

How can a father get full custody of his child after the judgment?

Just because the Family Court did not award full custody in a judgment does not preclude the father from seeking a modification. The court has the power to award full custody to any parent after the judgment.  For a complete modification of custody, that burden of proof is often a significant change of circumstances. That means the father must show there has been a significant change of circumstances. That change justifies the modification since the last court order.

Our final thoughts on how a father can get full custody of his child

No article can cover every scenario on how a father should get full custody of his child. We hope this article provided you with a general understanding of the subject. This article is not legal advice and does not apply to your specific situation. Use your common sense and immediately contact our family law firm if you need help. We offer an affordable strategy session.

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