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An overview of fathers’ rights in a California divorce

On Behalf of | May 12, 2022 | Family Law |

Perhaps the first statement that should be made about “fathers’ rights” in a California divorce is that the rights commonly associated with the phrase, custody and visitation, do not belong to either the father or the mother. They belong to the child. Nevertheless, both the father and the mother are entitled to argue about why the best interests of the child would be better served by awarding custody to the father.

Common mistakes made by fathers

Men often do themselves significant damage by falling into patterns of behavior that are generally considered to be acceptable or at least expected. First, the father almost always leaves the family home, thereby giving the child the idea that the child cannot count on the father to be available. After moving out, the father often rents a cheap apartment and does little or no housework, again making any visits by the child very unpleasant.

Some fathers are unable to hold down a steady job, and some men fail to resist false charges of domestic violence started by the mother. Staying away from these behaviors can provide material support for the father if custody becomes an issue in the divorce and the father must prove that he can serve the best interests of the child.

California law

Under California family law, both parents have an equal right to custody and visitation of the child. Both parents also have a responsibility to contribute to the child’s welfare by paying for housing, food, clothing, health care, and education. Thus, fathers begin any dispute about custody on equal footing with the mother. The value of this equal footing cannot be understated. With the help of a skilled family lawyer, every divorced father has an equal chance to win custody of his children.

Unmarried fathers

Thus far, this post has made no effort to distinguish between married and unmarried fathers. However, this difference is critical in custody cases: an unmarried father who is seeking custody of his children or generous visitation must prove that he is the father of the children.

Both parties can resolve this issue by signing a declaration of paternity at the time of the child’s birth; alternatively, either the father or the mother can bring a court action to determine paternity. Many judges use DNA samples to determine paternity, and these decisions are virtually impossible to challenge.

Best interests of the child

Sorting out the many factors that are used to determine the best interests of the child can be extremely complex. The legislature has enumerated a number of these factors, and they include:

  • The emotional ties and the family relationship that exists with each parent and the child
  • The child’s preference (if mature); living arrangements of each parent (safe environment, food, sleeping arrangements, etc.)
  • Mental and physical health of each parent; stability of living arrangement (ties to the community)
  • Whether there is a history of domestic violence and many others

In every dispute over child custody, every father will be greatly aided by the advice of a knowledgeable family attorney.