Many fathers facing Custody battles come into our office, often desperate for help due to the other parent’s seemingly arbitrary restrictions and refusal to facilitate parenting time. Fathers often ask if gender impacts custody decisions: Does California prefer that the mother have primary custody? How can a father get primary custody or increase his parenting time?
The answer in California is that everything comes down to the child’s best interest and facilitating frequent and continuing contact with both parents whenever possible. There is no bias against fathers in the law– in fact, California Family Code 3040(a)(1) expressly states that “the court shall not prefer a parent as custodian because of that parent’s sex.”
So where does that leave a father who faces a custody battle, or who faces a co-parent who tries to unreasonably restrict visitation? These cases can become complicated are very case specific, but the answers mostly come down to common sense:
- Best interest rules the day:
The court will order a custody schedule that it determines is in the child’s best interest, which almost always includes frequent contact with both parents. In evaluating the child’s best interest, the court considers the health, safety, and welfare of the child— ie: Is the child clothed, appropriately sheltered, fed healthy foods? Does the child get to school on time, receive homework help when needed? Does each parent support a healthy relationship with the other parent? These are just a sampling of inquiries, as the court can consider any factors it finds relevant to the child’s best interest, including academics, sociability, activities, parent’s work schedules and more.
- Show the court your parenting abilities:
Do you attend/schedule doctor’s appointments, activities, parent-teacher conferences, and otherwise stay involved? Do you take the child to school on time and help with homework and school projects? Do you do enriching and fun activities with the child during free time? If the child is a baby, do you change diapers, buy/prepare healthy foods, bathe the baby, read, sing, etc.? Show your parenting abilities to the court, show the judge that you are the real deal—often the daily, mundane tasks of parenting are most important.
If you have not been able to participate in these parenting tasks due to the other parent’s restrictions, be sure to save emails and screen shots of your requests to be more involved, and keep a record of correspondence with doctors, teachers, etc. Always be courteous and polite, making child-focused decisions. Show the court that you are doing everything you can to (courteously and politely) participate robustly in your child’s life but that you are being restricted.
- If a parent withholds the child, don’t wait to file:
If the other parent withholds your child or restricts access, you should consider getting legal advice as soon as possible. Don’t let months, a year, or more go by without resolving this issue out of court or drawing the court’s attention to this issue. California courts generally find value in maintaining a child’s sense of stability and status quo if the child is doing well under his or her current schedule and conditions, which means waiting can hurt your case. At the same time, a California court will likely create a reunification plan for parents coming back into the picture after longer periods. The more involved you are from the outset, and the sooner you seek access to your child when its being restricted, the less abrupt of a change for the child, making it easier for courts to grant the order you might be looking for.