Getting custody as a mother
You would think the answer to how to get custody as a mother in California would be easy. Don't most people believe moms have an unfair advantage in Family Court? Isn't that the common misconception among the public?
You can't just walk into court and say "I am the mother and I should get custody of the children."
Your status as the mom will not give you an advantage in Family Court. California child custody laws simply do not allow it. If you rely on your gender as a motivating factor for the court to give you custody, do not be surprised if you do not receive it.
More fathers want custody. More lawyers are willing to fight for father's rights in California.
There was a time in California where being the mom in a child custody case was enough. There was a time when fathers were content with a visitation schedule but without being involved in the day-to-day of the child's life and without seeing the child on at least an equal basis.
Those times have changed over the years and more fathers engage in their children's life. Some fathers are choosing parenting over careers. More lawyers are willing to enforce a father's rights to custody in California. More judges are willing to grant dads the same.
Don't take California child custody law and procedure for granted.
It is a mistake to walk into Family Court with assumptions about how things will go. Your level of preparedness is a key part to your child custody wishes.
How you get custody as a mother in California is partly dependent on the facts of the case but also how you advocate.
Walk into the court self-represented or with an ineffective lawyer because you went cheap and got cheap and you may find yourself disappointed.
How to get custody as a mother in California
In this article, we are going to lay out for you what we believe are questions mothers ask the most. We will also write about the answer to those questions so that you have a reasonable perspective and reasonable expectations for your child custody case.
This isn't legal advice although it is valuable to build a foundation. When you hire that knowledgeable California child custody attorney, you will be ready to discuss these issues with your advocate.
Everything we are writing here comes from our family law firm's experience and representation of mothers and fathers on their child custody cases as well as successful results we have achieved for each.
How to get full custody as a mother in California
What is full custody in California?
The term full custody in California is synonymous with the term sole custody. They mean the same thing but are often misunderstood.
Full or sole custody means the great majority of the care and control of the children is with one parent.
Sole or full custody in California does not mean that one parent has no visitation with the children. It simply means that visitation by the other parent is not frequent and regular enough to justify a joint physical custody label.
Most mothers and fathers in California child custody cases want to attach a specific percentage to sole versus joint physical custody. There is no specific percentage although most courts hover in the 30 to 40% range and it is in that range that the difference between sole and joint physical custody is determined. More than 40% is almost universally accepted as joint physical custody.
For most purposes, the label of sole physical custody in California is not the important factor. It is the parenting time that matters. As a mother, do you care whether there is a sole versus joint label used so long as the parenting time that you have versus that of the father is in your opinion consistent with the children's best interest?
In other words, don't get yourself caught on labels.
Sole legal custody in California
Legal custody is a completely different label under California law. When the mother asks how to get full custody, they're usually not just thinking about physical custody but also about the legal one. We have written a very comprehensive article on the subject of legal custody in California. Rather than repeating everything here, we urge you to read that article.
Pre-judgment full custody for the mother in California.
Obtaining full custody for a mother in California before the final judgment requires an evaluation of the children's best interest.
The California best interest analysis is at the core of every California child custody case. The best interest analysis is a look into the children's health, safety, education and general welfare. California's best interest analysis is not a scientific rule and the court has wide discretion in determining what is or is not in the children's best interests.
Prior to judgment, a request for order starts the process. The request for order, once called an order to show cause, puts the issue of child custody and visitation in front of the court. Since the case is before judgment, the family law judge is only looking to make temporary orders and not final ones.
A mother gets full custody of children before judgment by persuading the court with facts that the father is not fit to care for the children on a frequent and regular basis.
This could be for a variety of reasons.
- The father may have a recent history of domestic violence which has an impact on California child custody orders.
- The father may have a substance abuse problem which requires close monitoring especially if the father has not come to grips with the problem and is still in denial.
- The father, separate from any domestic violence past, may have emotionally abused the children and continues to do so. The common belief that unless there is physical abuse, there is no abuse is nonsense. We have had cases where a father has emotionally abused the children and has lost custody. We have achieved that successful result because we were able to show the seriousness of the emotional abuse.
- The father may simply be unfit to care for the children because the father has never really cared for them. In such situations, the degree that the father has not cared for the children does matter. Not having experience caring for the children because the mother was the primary caretaker in the marriage or relationship does not mean the father is left out forever, going forward. Typically, parenting skills are something that are attained and visitation time can then be increased as the father's skills improve.
- The father may be a flight risk and if you intend to make that allegations, be prepared to go through the California Family Code 3048 factors and be able to prove to the court how and why the father is that risk.
Everything that touches on the child's best interest matters when a mother seeks full custody of the children. The above is not an exhaustive list.
Post-judgment full custody request for the mother in California.
How a mother obtains full custody of the children post judgment is identical to prejudgment except an actual change of custody requires a showing of a material change of circumstances.
That means it is not enough to walk in Family Court and state that it is in the children's best interest to change sole custody to joint or vice versa.
However, this change of circumstances rule does not apply if all you are seeking is a change in parenting time. For example, if you already have sole physical custody and do not intend to change that but just want more time because you have facts that justify it, all you have to show is that more time is consistent with the children's best interest.
How to get primary custody as a mother in California
What is primary custody in California?
Primary custody refers to one parent having more than 50% of the parenting time. Primary custody is a bit of a legal fiction because California law doesn't have a legal definition of it. It is simply a term used and which has become part of the child custody vocabulary.
Parenting schedule and the Orange County Parenting Guidelines.
One of the best sources when determining parenting time is the Orange County Parenting Guidelines. This guideline lays out for all parents and lawyers what factors the court will consider when making an order that divides parenting time.
The Orange County Parenting Guidelines go through the various ages of the children and state the various needs children have at those ages. This is necessary because a three-year-old is not treated the same as a 13-year-old when forming a custody and visitation schedule.
The analysis for any parenting time including primary parenting time is once again the children's best interest. The key is what specific advantages exist to give you as a mother more than 50% of the time as opposed to simply dividing parenting time equally.
This is where moms make the mistake of thinking that primary custody to them should almost be a presumption.
It is not. If you are on an equal footing in every major respect with the father, you may be fighting an uphill battle if you want primary custody although the amount of the primary time could matter too.
One thing the court will look into is how things have been. Status quo is an important part of any child custody analysis. If the children have gotten used to a certain schedule for a lengthy period, the court may not change that schedule. The court may keep it if the schedule has brought stability and continuity to the children.
Whether you seek primary custody prejudgment or post judgment involves the same rules as full custody about your burden to show a material change of circumstances or simply show that the change in parenting time is consistent with the children's best interest.
How to get custody back from the father
Sometimes, mothers lose custody of their children. This could be for a variety of reasons. How to get custody back from the father depends on the following factors:
- Why was custody lost to the father?
- Are the reasons that existed for the loss of custody still relevant today? In other words, are the same concerns that caused the loss of custody still concerns today or have you as the mother fixed the issue?
- How long has the father had custody of the children to your exclusion or minimal involvement?
- Are the children bonded with you or is there a mother-child reunification process that is necessary before getting custody back?
- Have the children been alienated from you as a result of the father's conduct and how deep is that level of alienation?
- What has changed between the custody order for the father and today?
- Is it in the children's best interest for you as the mother to get custody of your children back?
These are not all the questions but they are a great starting point when deciding whether you should get custody back from the father.
The answers to these questions of course depend on an analysis of your specific situation which cannot be done in any article. A consultation is necessary to have such a discussion and find the potential success of seeking custody back from a father.
How to get custody back from a grandparent
We have actually written on grandparent's rights in California and it would help you if you read that article.
The reason it would help is because it would give you the other side's perspective and things the court will look at when deciding whether to give grandparent visitation.
If one or more grandparents have obtained actual custody of the children, something went horribly wrong in the child's life. The only time grandparents get custody of the children as opposed to simply getting visitation time is when the parents are unfit to care for the kids.
This happens in a variety of situations but the most common are:
- Both parents are out of the picture and have abandoned the children.
- Both parents suffer from a serious substance-abuse issue and are unable to care for the children.
- Both parents were incarcerated especially for lengthy periods of time. This is magnified if they are repeat offenders.
- The parenting skills of both parents is so lacking the children are in danger if they are left with the mother and the father.
Any one of these or a combination can lead to a mother and father losing custody of their children to one or more grandparents.
How to get custody back from grandparents will depend greatly on whether the concerns that led to you losing custody are no longer an issue. Walking back in the court without doing so is dangerous because the court may not be persuaded that giving the children back to you is consistent with their health, safety, education or welfare.
Similar to getting custody back from a father, you must be able to show the court and not just tell the court why things are better and why you are fit today to care for the children.
Got child custody questions?
We hope you enjoyed this article. If you are a mother who seeks custody, we hope it provided you with the information you needed to get started. If you know a mother seeking to get custody, please share this article with her. Everything we have written here is intended for a mother who has a California child custody case. If your case is not in California, please consult with an attorney in your State because what is listed here may not apply to you. Each State's laws and procedures are different.
For some additional reading, please check out our articles on:
- Common myths and misconceptions about California child custody: In this article, we discuss what we believe to be common myths and misconceptions about California child custody.
- Over 50 child custody battle tips for mothers: This is a comprehensive guide for mothers who are caught in a custody battle.