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Specializing In Family Law Litigation And Mediation

Do courts always award child custody to the mother?

The question in this headline reflects an outdated, but pervasive, assumption with regard to child custody in California. People often assume that courts automatically grant primary physical custody to mothers, while fathers receive visitation.

However, this is not an assumption you should make if you are going through a divorce. Courts are prohibited by law from automatically granting custody based on sex of the parents or sex of the children. The courts also cannot deny custody rights based on lifestyle, sexual orientation or religious beliefs. The factors California courts do use to give custody include those we examine below.

The best interests of the child

Broadly speaking, the courts award custody based on their assessment of what is in the best interests of the child. To assess this, they look at:

  • How old the child is (e.g. babies who are breastfeeding need to spend the majority of time with the mother)
  • The medical needs of the child
  • The existing relationship between each parent and the child
  • A parent's capability to care for the child
  • Any history or allegations of violence or abuse
  • The impact of moving a child away from strong ties to a community 

Avoiding the courts

Another assumption parents often make is that they will have no control over who gets legal and physical custody of their children. Again, this is not true. Oftentimes, parents are just as capable as the courts of making their own custody arrangements.

Through collaboration or mediation, parents can create their own plan for custody and visitation. This allows parents to have more say in the arrangement and pursue a plan that works best for them and their kids.

Avoid costly mistakes and assumptions with legal guidance 

Before you make the mistake of thinking mothers always get custody or that you have no control over who gets legal and/or physical custody of your kids, you can work with an attorney to learn about your legal options. Misinterpreting the law or your parental rights can prove to be a costly mistake that can be avoided by consulting an experienced family law attorney.

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