Do Fathers Ever Get Primary Custody? / by Cassandra Hearn

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Custody disputes are some of the most emotionally draining cases a person can face. The spousal maintenance or property division issues of divorce are extremely important, but custody has special significance, as nothing is more important to a parent than his or her children. While the face of family law litigation is changing along with the landscape of the American family, it is still common for parents to wonder if a father can ever be successful in requesting custody of a child.

California Family Code 3040 is highly relevant to this issue. It states that there is a preference to grant joint custody. The statute goes on to state that if custody is to be granted to one parent over the other, the court “shall not prefer a parent as custodian because of that parent’s sex.”  In other words, the statute very plainly says that whether a parent is a mother or a father shall not be a reason to grant or deny custody. Instead, the court looks to specific best interest factors when making a decision on custody and visitation schedule issues. These best interest factors include many subjects, including whether the parties are able to work together, whether each parent has demonstrated a willingness and desire to encourage the child’s relationship with the other parent, and in some cases, the child’s preference.

A court will also take a close look at continuing stability and continuity in the child’s life. To determine that, a court will take into account which parent has been the primary caretaker for the child or children and will try to maintain established patterns of care. In the past, the mother was typically the one doing the majority of the child care while the father was the breadwinner. This has altered drastically and it is common now for both parents to participate equally in childcare, and a stay-at-home father is no longer a radically unusual situation. If a father is seeking to be named the primary custodian of a child, he will want to produce proof that he has historically been the primary caretaker, just as a mother would need to do.

If you have questions about custody, call us today for a consultation at 619-800-0384. We have experience in helping our clients to understand their rights and reach their goals.