We recently started a blog series outlining the biggest myths in family law/divorce.  One question we are asked is “do moms always get custody of the kids in California?”  The answer to this question is, no, moms don’t automatically get custody of the children just because they are the mom; dads have rights too.

If the parents can’t enter into a custody agreement, they can file a Request for Order for Custody with the Court and ask a Judge/Commissioner to make a custody order for them. When deciding which parent gets custody, the Judge/Commissioner must consider a custody schedule that is in the “the best interest of the children” and one that promotes frequent and continuing contact with both parents (unless frequent and continuing contact would be detrimental to the kids).  In order to decide what is in the “best interest of the children” the Judge/Commissioner must consider:

• The health, safety and welfare of the children;
• Whether there is a history of abuse by one parent (or any other person seeking custody) against any of the following:
  • The child;
  • The other parent; or
  • The parent, current spouse, or cohabitant of the parent seeking custody.
• The nature and amount of contact with both parents; and
• Whether a parent has an alcohol, drug, or substance abuse problem.   

So despite the popular belief, moms don’t always get custody of the children in California.  The Judge/Commissioner decides each case individually and will make an order that is in the best interest of that child.  Simply put, if moms always got custody of the kids, we wouldn’t need a court or judge to make a custody order. 

As a final note, the “best interest of the children” applies to both married and unmarried parents.

If you have any questions about child custody or visitation, feel free to contact us.