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MYTH: CALIFORNIA COURTS ARE BIASED AGAINST FATHER’S SEEKING FULL CUSTODY

July 6th, 2020

There is a common misconception that California family law judges favor mothers in custody battles and that fathers are never awarded full or even primary custody of a child. This so-called bias against fathers in custody matters may have existed in the past but it was less of an actual bias against fathers and more so just a product of the societal norms at the time.

If we look back 40 or 50 years ago, gender roles were much more defined and followed than they are today. The societal norm and general expectation was that father’s were the providers and mothers were responsible for child rearing. Therefore, in a custody battle, court’s would typically grant primary custody to the mothers due to the assumption that it would be in the children’s best interest to remain in the care of their mother regardless of that particular mother’s parenting abilities. However, if the father had re-married and there was a woman of the household to assume the child-rearing responsibilities then, perhaps, a court would give greater consideration to a father’s request for primary or sole custody.

Today, those societal norms and general expectations no longer exist. It is no longer assumed that a husband would work and provide for the family while the wife remains in the home and cares for the children. There are plenty of stay-at-home fathers and working mothers to completely extinguish those outdated societal expectations. In fact, it is far more common that both parents work and childcare is outsourced to a family member or professional childcare services. As a result, courts no longer assume that it is in the child’s best interest to be in the primary care and custody of the mother. In fact, Robert Nachshin has consistently obtained joint custody for fathers before it was the norm.

Even though it is a myth that courts are biased against father’s getting sole custody, it is still a very rare occurrence for any parent to be awarded sole custody. This is due to a wellestablished public policy of California family courts that, generally speaking, it is in a child’s best interest to have continuing contact with both parents.

Court’s review every case on an individual basis and they consider a variety of factors to determine what specific custodial arrangement would best serve a particular child’s unique needs and interests. More often than not, this consideration would now result in a joint physical and legal custody order. Joint physical custody does not necessarily mean each parent enjoys 50% custody of the child[ren].

A judge might determine that it would be in the best interest of the child, for whatever reason, to spend 65% of the time with the mother and 35% with the father. However, a few years later, and as a result of changed circumstances, that same judge might believe that child would now benefit from being in the custody of his or her father 70% of the time and the mother’s custody 30%. Child custody can be ever-changing but the majority of custody determinations will result in some form of joint physical custody.

Only in the rarest of circumstances will a court award sole custody to a parent. The primary justifications for a sole custody award are instances of extreme child endangerment/abandonment, sexual abuse, physical abuse, or a parent’s significant drug addiction. In a custody battle, a parent seeking sole custody might be tempted to accuse the other parent of such behavior but before doing so that parent needs to carefully assess the situation and make sure there intentions are purely out of concern for their child.

As you can imagine, however, the abovementioned claims would require much more than mere allegations or the testimony of a biased witness (i.e., family or friend of the alleging parent). Courts take these allegations very seriously and require a significant burden of proof. Making false allegations of this nature can completely backfire on the parent making the allegations since it is likely to destroy their credibility in the eyes of the court.

Further, maliciously making such false allegations could arguably be considered attempted parental alienation which courts greatly frown upon and in extreme circumstances could be enough to warrant sole or primary custody of the child to the other parent. This goes back to the well-established public policy that it is in the best interest of a child to have significant and continuous contact with both parents. Therefore, if one parent is making false allegations against the other parent in an attempt to keep that parent away from the child then it could be said that the parent making the false claims is acting directly against the child’s best interest and prioritizing their own self-interest above the needs and interest of their child.

In summation, if you are a single father with genuine concern for your child[ren]’s wellbeing in the care and custody of their mother, you have just as much a chance of receiving sole physical custody than a mother would have in your position. Again, judges are very wary in awarding sole custody, and only do so in extreme circumstances where the cause for concern for the child’s wellbeing is established with clear and convincing evidence (i.e., serious drug use of a parent or physical child abuse is caught on video, etc.), but the gender of the parent seeking sole custody is no longer a deciding factor.

Custody matters are highly complex and difficult to navigate alone. If you are a concerned parent seeking an increase in your custodial timeshare, or need help defending yourself in a custody matter filed against you, please call us at the Law Offices of Robert J. Nachshin at (310)478-4600 so we can help you advocate for your child[ren]s best interest.

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