At one time, the answer to that question would have been simple. Historically, mothers were more likely to gain child custody, especially if the children were young since they tended to be the primary caregivers. Today, it’s different: both women and men work outside the home after the children are born and fathers provide the same degree of love and care traditionally associated with mothers, so custody decisions are less likely to be gender-biased.
At the Law Offices of Renkin & Associates, we have helped many clients who are divorcing or separating obtain a favorable child custody arrangement. In this blog, we review the factors that California courts consider when determining which parent is more likely to gain child custody during a California divorce and how an experienced divorce lawyer can help you seek an arrangement that protects your rights as a parent.
Custody Options in California
In California, there are two types of child custody – legal and physical. Legal custody refers to the right and responsibility to make important decisions for the child(ren) health, safety and welfare, such as where they go to school, what health care they receive, and what faith they are brought up in. In contrast, physical custody refers to how much time each parent spends with the child(ren).
Depending on the circumstances, the judge may award joint custody or sole custody. When parents share joint custody, both have parental responsibilities, while sole custody restricts certain rights to only one parent. As a general rule, California state law assumes that joint legal and physical custody is in the best interests of the child unless circumstances recommend otherwise.
With a joint physical custody arrangement, the child lives with both parents and divides their time between the two households. Joint physical custody does not mean the children must spend precisely half their time under each parent’s roof. In California there seems to be a tendency toward 50-50 physical custody; child(ren) can live with one parent more than the other. Parents who have their children more than half of the time are sometimes referred to as “primary custodial parents.”
When one parent is granted sole or primary physical custody because the court determines that such an arrangement is in the child’s best interests, the other parent will usually be entitled to parenting time, more commonly known as visitation. Most courts will not deny parent visitation rights, although supervised visitation may be ordered if the judge determines that spending time with a parent may harm a child’s welfare or safety.
When parents receive joint legal custody, they raise the children together and have an equal say in all important decisions. If sole legal custody is granted to one parent, only they can make choices about where the child lives and goes to school, medical treatment they receive, and other important decisions.
How Do California Courts Make Custody Decisions?
California courts consider several factors when determining child custody. As stated earlier, judges do not automatically award custody based on the gender of the parent. You also are not less likely to gain child custody during a California divorce if you have a physical disability or a different lifestyle, religious belief, or sexual orientation. Instead, the court will consider the best interests of the child and the ability of each parent to provide the necessary supervision and care.
A case-by-case approach is necessary when dealing with custody issues, with child health, safety, and welfare being the primary concerns. California judges evaluate factors like the following when determining what outcome is in the best interests of the child:
- The child’s age and health
- The ability of each parent to care for the child, including financially and emotionally
- The nature of their bond with each parent: does one parent appear to be the primary caregiver?
- The child’s ties to the community (the presence of their school, friends, and relatives)
- Whether either parent has a history of child abuse or domestic violence
- Any evidence of substance abuse
- The child’s wishes once the child is of sufficient age and/or maturity.
In some cases, California courts give custody to a third party, particularly if it’s obvious that neither parent is in a position to take care of the children. This arrangement, known as guardianship, is when someone else requests custody of the children because the parents are unable to handle the responsibility, either at the time or permanently.
Can a Child Decide Which Parent They Want to Live With?
When children are of sufficient age and ability to express an intelligent opinion, California courts must consider and give weight to their preferences unless doing so would be contrary to their best interests. This is especially true if the child is at least 14, although younger children may be allowed to express a preference.
When determining how much weight to give a child’s preference, the court will consider the reason for preferring one parent over another. For example, if your son wants to live with your former spouse because she’s not as strict as you are, his opinion isn’t likely to carry much weight.
Can Parents Reach Their Own Custody Agreement?
Child custody issues don’t always involve litigation. In fact, it’s the exception rather than the rule: statistically speaking, less than 4% of custody cases are settled in court.
It is possible -even encouraged- for parents to work out a custody arrangement and submit it to the court for approval. When you and your former spouse negotiate your own physical and legal custody arrangement, you’re not only more likely to honor it, but you tend to be better and more supportive co-parents.
Parents seeking to negotiate a custody agreement without court intervention often use mediation as an alternative dispute resolution method. Like standard negotiation, this process can benefit parents and children because it supports open communication and a cooperative attitude. It is also less stressful and more cost effective than litigation.
The mediation process involves a neutral third party called a mediator who guides the discussions between the parents and facilitates healthy communication between them. If you and your spouse have trouble agreeing on any aspect of the custody arrangement, mediation allows you to work through it and ultimately control the outcome of your custody case.
Who is More Likely to Gain Child Custody During a California Divorce? Ask a Family Lawyer!
The vast majority of custody orders are determined outside of the court system, either through negotiation or mediation, so chances are that you will be able to arrange an outcome that gives you as much time with your children as possible. If your spouse is hostile or is determined to either seek sole custody or create a one-sided schedule, a lawyer can help you protect your rights.
At the Law Offices of Renkin & Associates, we believe that you deserve a close and rewarding relationship with your children, and will advocate for a custody arrangement that maximizes your time with them. To schedule a confidential initial consultation with San Diego family law attorney Richard M. Renkin, please call 866-228-7116 or request an appointment online today.