Most people have a presumption that if two parents separate, the mother will automatically be granted the custody of children, and the father will be expected to be the one paying child support. This is in line with the belief of a working father who plays the role of a provider and a mother who is a housewife. However, there are no laws in the state of California that outline the role of gender in child custody and support. Both parents have the responsibility to ensure that the financial needs of the children met and the right to spend time with their children. These rights and responsibilities apply to all parents regardless of gender.
Fathers’ Rights Regarding Child Custody in California
Child custody in California falls into two categories: physical custody and legal custody. Child custody deals with who is responsible for making major decisions for a child as well as where the child lives. All parents have equal rights but before a determination is made on who will be granted child custody, the courts will evaluate what is in the best interest of the child under California Family Code Section 3041.
Physical custody is used in reference to where the child will live. When it comes to physical custody, a father has the right to live with the child or visit the child and spend time together. Conversely, legal custody denotes the right of being able to make important decisions for the child. The matters that a parent can make decisions on for the child include education, health care, religion, extracurricular activities, residence, travel and more, without infringing the rights of the child to that matter. Both types of custody can be granted to solely to one parent or jointly to both parents. A father has rights to both types of custody, depending on what is in the best interest of the child
Physical custody
Fathers in California have the right to spend quality time with their children, as long as it is determined to be in the child’s best interest. This means that the child can stay with their father or visit them when deemed necessary. Physical custody depends on the paternity of the father and once proven that the father is indeed the biological parent of the child then only other aspects can stand against this custody such as irresponsible behavior that can be harmful to the child.
There are various forms of physical custody rights that can be accorded to a father in California;
- Joint physical custody
California law likes to see both parents play an important role in their children’s development. This can be made possible because through a joint a physical custody. Joint physical custody means that both parents are entitled to spend equal amounts of time with the child as determined by the court. However, this doesn’t necessarily mean that the child will split his or her time equally between both parents’ homes. It implies that the child will spend slightly more time with one parent than the other. A father has the right to negotiate for a joint physical custody and can agree on the how to share the child even outside of the court. A father in a physical joint custody agreement will have the right to be involved in the child’s life frequently and on a regular basis.
- Sole physical custody and visitation
Under the California law, both parents can be granted this type of custody and a father has no more or less rights concerning these. If the court finds the mother not be fit for a joint physical custody, the father has the right to sole physical custody, which means that he will be responsible for providing the child with a place to live. Depending on the circumstances under which the custody is sought, it is upon the discretion of the court to decide the person who will be granted full custody of the child. With the help of a good family attorney, a father can be granted this custody if it’s in the best interests of the child.
If it’s determined that it is in the best interest of the child that the mother is granted sole physical custody, then the father has the right to visitation. This means that even if the parents are not in a joint physical custody, the father still can spend time with his child. Sole physical custody could be granted because the father lives far away or child’s life would be interfered with if he or she moves from the town in which mother lives.
Legal Custody
Like with physical custody, California law favors joint legal child custody. Legal custody, as already stated, means that a parent is granted the ability to make decisions on behalf of the child. Mothers and fathers have equal rights in regards to this custody and can make decisions that are in the best interest of the child. Just like in physical custody there is joint legal custody where all parents are party to agree on decisions that they make for their child. Legal custody can be granted solely to one parent, or jointly to both parents. A father has the right to both types of custody once it is determined to be in the best interest of the child.
Factors That Can Affect a Father’s Right to Custody.
There are some factors that can hinder a father’s rights in being awarded child custody:
- Accusations of domestic violence, child abuse and violation of a restraining order. If you’re a father facing false accusations, it’s imperative to retain a qualified attorney who will help protect your rights.
- The absence of a father in the child’s life. If a father deliberately stays away from the child, then that proves to be an obstacle in a child custody battle. However, if the father wasn’t aware of the existence of the child or was away for some commitments, then visitation can be granted and custody sorted once a relationship has been developed.
- Lack of steady financial income can also be an obstacle as California laws allow a parent to be granted custody of the child if he or she is able to provide for the basic needs of the child.
Rights of a Father Concerning Child Support
The belief that the father had to pay for child support because he was perceived as the breadwinner has changed over the years. Both parents have the legal obligation of financially supporting their children regardless of who has custody.
The main purpose of child support is to put the child in the situation they would have been in if the parents stayed together. Child support is determined by the income of both parents and the financial needs of the child. Often times, the father is obligated to pay for child support, but this does not give the mother the right to stay home instead of finding a job. Following a divorce, a father has the right to enforce an obligation on the mother to find gainful employment to support their shared children. If she does not comply and she has custody of the child, then the father can apply for a modification of the custody.
How Can a Mother Violate a Father’s Rights?
There are various ways in which a mother can be said to be violating the rights of a father. Examples include:
- Failure to co-parent with the father of the children
- Failure to abide by the set schedules in custody and usually makes the father wait to pick up the children in a joint physical custody
- Interfering with the father’s time with the children by using them as messengers for custody matters
- Curtailing the father-child relationship through ridicule or by using other strategic plans to interfere with the relationship
- Falsely accusing the father of child neglect and abuse
- Failure to involve the father in important child upbringing decisions, especially when they have joint legal custody
- Preventing the father form being able to see the children by scheduling other activities during the father’s visitation time
- Moving the children to another area or out of the state without the father’s knowledge
- Denying the father visitation because he has failed to pay visitation on time
Steps a Father Can Take When a Mother Violates His Rights
If your rights as a father have been violated by the mother of your child, you should look for a way to communicate with the mother concerning the issue, unless there is a restraining order against you. If the restraining order exists, it’s in your best interest to contact a family law attorney immediately. Your attorney and the other party’s attorney can try to help resolve the matter. In this case, keeping a record of dates and details of all times the mother has violated your rights would be highly beneficial
If your custody or visitation rights are perennially violated by the mother, you can get in touch with the local police department to have the court enforced. Conversely, if the mother totally denies the father access to the child, seek help from the Child Abduction Unit in your local area. Such matters involve various areas of the law and you should, therefore, inform your attorney about your situation. Your attorney can help by filing a contempt of court action against the mother. A hearing will be held and the judge will decide if indeed there was a violation of the court order.
If the allegations by the father are true, the court can do any or all of the following:
- Alteration of the original order to increase the father’s visitation hours
- Modification of the child custody order so the father is given sole custody
- Modification of the custody order to give the father primary physical custody
- Introduce supervised visits for the mother or have her visitation hours reduced
- Have the mother pay the father’s legal fees for the contempt of court action
- Impose jail time or fines on the mother for contempt of court charges
All fathers should be aware of their rights when it comes to child custody and child support. Divorced and unmarried fathers have equal rights as mothers, and that should not be easily taken away for whatever reason unless deemed not to be in the best interest of the child.
Fathers’ Rights and Family Planning
When it comes to the issue of family planning, decisions about raising a child, adoption, and abortion can have permanent ramifications for both parents. The father has the right to object a mother’s decision to put a child up for adoption. If he wants to have full custody of the child instead, he can file a petition for custody. It is worth noting that if an expectant mother decides to terminate a pregnancy, the expectant father has no legal right to prevent it. Also, an expectant father has no legal right to prevent an expectant mother from carrying a pregnancy to term. Even if he opposes and the child is born, he cannot disclaim fatherhood or refuse financial responsibility. A father in this kind of situation may still be responsible for child support after birth.
Fathers' Rights to Parental Leave
Having a child is one of the biggest events in almost every father’s life. When a father takes time off in the first few months of a child’s life, the whole family can benefit from time together and create new memories. However, many employed fathers regard an extended leave as unrealistic because of potential stigma, finances, and potential harm to his job. Recognizing this, California has passed a protective leave bill known as the New Parent Leave Act (NPLA). This law makes it easier for parents to bond with their new children. Under the new law, a father has the right to take up to 12 weeks’ paternal leave when a child is born or adopted. The NPLA allows fathers to also return back to work and have a guaranteed job once their leave period is over.
If you are a father who want to be involved in your child’s life and activities as the law allows you to, you must have your voice heard now. Having an attorney on your side can be an invaluable move. The experienced fathers’ rights attorneys at San Diego Family Law Attorney can help you protect your rights, make sure you are involved in decisions that touch on your child, and prevent interference with your parenting rights. If you have any inquiries about your rights in a paternity, custody, or visitation matter, contact us today at 619-610-7425 or for a free consultation.
