Father’s Rights in California: Do Family Courts Favor Mothers in Custody Cases?

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What Are Father’s Rights in California?

As they relate to California family law, father’s rights refer to a relatively modern movement which seeks to remedy historical discrimination on the basis of gender in the family court system; particularly as it relates to child custody. Members of the so-called “Father’s Rights Movement” argue that children have a fundamental human right to an opportunity to share a relationship with both their mother and father and call for greater equality in parental responsibility following separation, divorce, or the establishment of paternity.

The principal goal of modern custody law is to further the best interest of the child. Joint custody legislation purports to realize this goal by, among other things, encouraging both parents to remain actively involved in their child’s life. Two important assumptions are implicit in the modern trend favoring joint child custody: first, that parents will be able to cooperate in raising their child, regardless of whether or not they freely decided upon joint custody, and second, that the harm to the child caused by any inter-parental conflict will be outweighed by the benefit of continuing a parent-child relationship with both parents.

Custodial rights of parents following separation or divorce has a long and rather interesting history in western society. Initially, when colonial Americans settled in, what is now, the United States, they followed English common law which automatically granted the father custody of children following divorce.

This was primarily a result of other laws providing that wives were property of their husbands because women were considered femmes couvertes (loosely translating to “covered women”). Therefore, in the rare case of a divorce, the father retained his legal right to control and custody of any children.

With the rise of the Industrial Revolution in the eighteenth century, more fathers began travelling farther from their properties and villages for work, leaving mothers behind to care for the children. This is likely where the image of fathers as the “bread-winners” and mothers as caregivers began to emerge and influence custody decisions.

This was also before women had the option of birth control, so the number of children being cared for was difficult to limit. Women were often pregnant, breastfeeding, and caring for preschool age children for much of their reproductive years.

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In 1839, England enacted the Custody of Infants Act, which provided that courts could now exercise discretion in making child custody determinations. The act allowed a mother to petition courts for custody of her children up to the age of 7.

Then in 1873, the English Parliament extended the age to 16 under the “Tender Years Doctrine,” which created a presumption that in a child’s early years, they are best cared for by their mother. The doctrine dictated that small children needed the nurture and stability of a primary parent, and that parent was most likely to be the mother. The tender years concept, while unarguably unfair to fathers, was favored for respecting the developmental requirements of children for nurture and the stability of a primary parent.

This principle was adopted by the majority of the United States, and reigned for the next century.

Best Interest of the Child Standard in California

As divorce rates began increasing in the 1960’s, new questions emerged about the roles of each parent when parents no longer lived together. Father’s rights advocates grew more prevalent, which gave rise to a movement for gender equality in family law.

This led to the Tender Years Doctrine being widely replaced with a more inclusive (but vague) “best interest of the child” standard. The best interest of the child factors granted judges an unprecedented amount of discretion in determining what was in a child’s best interests when making determinations of custody.

The rise of the best interest standard also gave rise to the concept of “joint custody” in which parents share the responsibility of caring for their children according to a visitation schedule.

Various cultural developments also contributed to the rise of the concept of joint custody. Notably, in the 1970’s experts in the child development field began paying more attention to the important contributions fathers can, and do, make in a child’s development. Also, traditional gender roles in families began shifting with more women working outside of the home as a result of the feminist drive for equal treatment in the workplace.

In 1979, California became the first state to pass a joint custody statute. By 1991, more than 40 states had statues with joint custody as an option or preference in family court.

Since then, Family Code 3011, 3020, and 3040 have all provided further legislative mandates that California family courts shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.

Are Fathers Treated Unfairly in California Family Court?

Despite all of these modern legislative and societal shifts towards joint custody and disfavoring considerations of gender in family court, many fathers still believe they are not given a fair shake in family court, especially as it relates to custody of children.

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One of the reasons mothers may get more custody than fathers is that family law judges in custody cases consider which parent has served as the primary caregiver for the child. Judges don’t want to yank a child away from the most significant person in their life because California custody law provides that maintaining the “status quo” is in a child’s best interest.

Even if the child’s mother has served as their primary caregiver, however, fathers can prove they have played an active role in their child’s life. Fathers need to make it clear to the other parent and the judge that they want to remain deeply involved.

The proclamation of Family Code 3010 that a mother and father are “equally entitled to the custody of the child” expresses the clear legislative declaration that historical bias in favor of mothers and against LGBTQ parents is not consistent with the public policy of the State of California.  This notion is again addressed in Section 3011, 3020, and Section 3040 presumably because of the long-standing bias and perceived bias in California custody matters.

However, all of these statutory safeguards do nothing to address the common belief by many fathers in California that it is not the law that favors mothers in family court so much as the people who carry out the law (i.e. judges, family attorneys, mediators, custody evaluators, etc.).

Unfortunately, the perceived (or even actual) bias of individuals is not easily addressed. Even if this bias does not actually exist, the perception that they are not afforded a fair shake in family court undoubtedly impacts these fathers’ custody cases.

A litigant who walks into court expecting injustice and discrimination may not be as respectful to the judge, may be more combative with the opposing party or counsel, and may exhibit signs that he does not even care about the proceedings, having already resigned himself to defeat. None of this behavior is what judges want to see from a parent who supposedly wants custody of his child.

So whether fathers are genuinely given a fair shake in family court may not be the heart of the issue anymore, or at least, it may not be the only issue. Maybe there is a deeper, more cyclical problem affecting fathers in family court.

About Colleen Sparks

Colleen Sparks is a Family Law Attorney at Talkov Law in California. She can be reached at (844) 4-TALKOV (825568) or colleen@talkovlaw.com.

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