One of the first things we do when helping dads navigate custody and visitation in family court is take down all the facts of their case and set expectations for the process. In doing so, we overturn many common misconceptions and California child custody myths for dads. Here are 10 truths about custody and visitation that fathers should know when preparing to move through a divorce that involves children.
Family courts in California do not favor the mother. Dads are not at a disadvantage because of their gender. The law explicitly states that judges shall not prefer a parent as custodian because of that parent’s sex. Usually judges say, I’m starting at 50/50—tell me why it shouldn’t be that way, and proceed from there.
Dads are not automatically entitled 50-50 custody, or any custody order for that matter. Likewise, there is nothing in the family code that automatically grants custody to fathers solely on the basis that they are the dad. The standard the court uses during a divorce is the best interest of the child. The court holds that frequent and continuing contact with both parents is in the child’s best interest. What does frequent and continuing contact entail? That is unique to every family’s situation, and set forth in a parenting plan which parents agree to—and sometimes litigate—in the divorce process.
Family court judges are not without bias. Every human being has biases, including even the most honorable, reputable, and professional family court judges. There is a reason that family law attorneys pay attention to which judges are presiding over their cases. A good attorney presents the facts of your case in a manner so that biases do not become deciding factors for their clients.
Custody is one of the reasons divorce cases go to trial. A small percentage of divorce cases go to trial—and custody tends to be one of the issues that spouses will fight in court. Parents who are separating are required to go to custody mediation and create a parenting plan that lays out custody and visitation, divides parental responsibilities, and defines decision-making with respect to the children. If they cannot agree in mediation, the judge may give parents (and their attorneys) another chance on the day of the trial to decide for themselves before handing down a ruling.
A visitation order is only as good as how you can exercise it. Many parents have a disconnect between the custody and visitation order they want, and the reality of exercising that order. Dads that have an intense work schedule will not have the same order as a dad who was the primary caretaker. It has nothing to do with gender, and everything to do with roles in the home before the separation, and the reality of both parents’ schedules as it relates to caring for the children.
Parenting roles prior to separation are relevant in court. The courts do not want a divorce to disrupt the lives of the children, and rightly take into consideration what parenting roles looked like before the parents split up. That said, the child’s best interest is always the most important determining factor in child custody during a divorce, and the court will decide accordingly. Thus, to minimize disruption, the court considers how parents divided responsibilities prior to separating, and weighs it within the context of what is in the best interest of the child moving forward.
Be ready to co-parent with your ex-wife in a positive manner. You’re doing this for both your kids and yourself. The courts do look favorably on parents that welcome frequent and existing contact between children and the other parent. Being civil and polite even if your ex-spouse is being unreasonable will help you obtain favorable modifications to your order should you pursue them. Document everything, and do so as if it will be read by a family court judge. Because it will.
A final custody order is not the end of the story. Something that we tell dads from time to time: if you want more time with your kids, ask for it. The courts are in favor of maximizing parental involvement when a child will benefit. If your goal is to spend as much time with the kids as you can, really get involved in their lives. It’s that simple. Go to their doctor’s appointments, school functions, and extra curriculars. Know their clothing sizes. When circumstances change, for example if a stay at home mom starts working, that provides an opportunity for the dad to modify custody and visitation to match his involvement in the lives of the children.
It is difficult and expensive to “undo” mistakes in family court. It is always easier to prevent something from happening than undo something that is already and is a court order. If you are considering a divorce, you will always save time, stress, and money if you work with an attorney on a game plan that guides the process towards your goals.
Do not navigate family court matters without an attorney. The truths we outline here are simple for dads to execute, but navigating family court in an effective manner is not. This is especially true when emotions run hot as they do in child custody matters. You don’t know what you don’t know. We represent a lot of dads that tried to represent themselves initially and received unfavorable orders. To unravel a botched effort at self representation, they spent a lot more money than they would have by enlisting quality legal counsel from the get-go.
Contributing to this article: Certified Family Law Specialists Carrie Block, James Parke, and Chandra Moss; Certified Appellate Law Specialist Ron Funk, and Collaborative Attorney and Mediator Diana L. Martinez.