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A Mother’s and Father’s Child Custody Rights

For most parents entering into the legal process of determining custody, this is the first time they’ve ever encountered the subject, and so a lot of myths and preconceptions can surround the custody process. One prevailing preconception is that custody laws favor the mother over the father. While this may potentially be the practice in some jurisdictions, California law does not make the sex of the parents a controlling factor in custody determinations, and specifically excludes that as a factor. Which leads us to the question – what are a mother’s and father’s child custody rights in California?

California Provides for Both Joint and Sole Custody

At the outset, it is important to understand that California courts can provide joint custody to both parents, and courts will often choose this route. This will involve a plan by which one parent has physical custody for some portion of time (e.g. Thursdays through Saturdays), and the other parent will take care of the child for the remaining portion of time. California courts may also choose to award sole custody to either the mother or the father, and a determination of sole custody may be reached through agreement of the parents (which must be approved by the court) or through the court’s decision if the parents are unable to reach an agreement.

California Disallows Preferences Based on Sex

California family law judges must follow California law in reaching their decisions, and the California family law code provides instruction on what factors must be considered by judges in determining custody. With regard to determining which parent might receive sole custody of a child, California Family Code Sec. 3040(a)(1) explicitly states that a parent’s sex should not be considered:

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.

Therefore, both mothers and fathers seeking custody should consider how they might provide the other parent with frequent and continuing contact with the child. While that may not always be possible – and a court should not require such contact in situations involving ongoing domestic violence – it is important to understand that the likelihood of frequent and continuing contact by the noncustodial parent will be considered in awarding sole custody.

Factors the Court Will Consider in Determining Custody (Sole or Joint)

Rather than pointing to the mother and father as the more likely parent to be awarded custody, all of the factors point to what is in the best interests of the child, which is the ultimate question that the judge must answer in determining custody, regardless of whether the court decides to award sole or joint custody. These factors include:

  • The child’s age
  • The relationship of the child’s parents and any other persons who may significantly affect the child’s welfare
  • The preference of the child (if the child is old enough to express this)
  • The current situation of the child
  • The child’s adjustment to current geographical and schooling situation
  • The stability of the proposed custody arrangement
  • The capacity of the parents to provide adequate childcare, love and support
  • History of domestic violence
  • Other meaningful factors asserted by the parties

Visitation is Available to Noncustodial Parents

When sole custody is awarded, the other parent will generally be allowed to seek visitation rights with the child. As with custody, the parents can agree on terms of visitation or the court can order visitation, although it is not required to do so, and will not do so when visitation would not be in the best interests of the child. Visitation may be required to be supervised.
Get Answers to Your California Custody Questions
To schedule a consultation your custody and visitation rights as a parent, contact one of the family law attorneys at Kearney Baker today at 626-768-2945.

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