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Do California Courts Favor Mothers in Custody Decisions?

Mon 16th Sep, 2024 Blogs

One of the most commonly held assumptions about divorce (and family law more generally) is that courts tend to favor mothers in child custody battles. This is not unreasonable, as the trope has been dramatically reinforced in the media many times over the years (see, e.g., the 1979 hit film Kramer vs. Kramer). The truth is that courts do not necessarily favor mothers over fathers or vice versa. If mothers tend to get more favorable custody terms more often, it is due to factors other than their gender. The attorneys at our Stockton child custody law firm explain the reason below. 

Courts Do Not Consider the Sex of the Parents When Making Custody Determinations 

California courts are guided by two principles when making child custody determinations: 

  1. The health, safety, and welfare of children is the court’s primary concern in determining the best interests of children when making orders regarding physical custody, legal custody, and visitation (California Family Code § 3020(a)).
  2. Courts should ensure that children have frequent and continuing contact with both parents after the parents have separated and to encourage parents to share the rights and responsibilities of child rearing (§ 3020(b))

If there is a conflict between those two policy goals, courts prioritize the health, safety, and welfare of the children. The family code also provides that the sex, gender identity, gender expression, or sexual orientation of a parent is not to be considered when determining the best interests of children (§ 3020(d)). As such, mothers are not favored by law in child custody matters. 

Instead, Courts Are Guided by the Best Interests of the Child 

Courts do not assume that mothers are more appropriate parents when making child custody determinations. Instead, they are guided by the best interests of the child (§ 3011). When determining the best interests of the child in child custody and visitation matters, courts consider the following factors: 

  • The health, safety, and welfare of the child
  • The nature and amount of contact with both parents 
  • A history of domestic violence by the parents
  • A history of substance abuse by the parents

Of course, courts may also consider other factors when determining what is in a child’s best interests; the factors above are merely a starting point. 

Why Does the Myth Persist? 

While the law is officially gender-neutral, that does not mean that mothers and fathers are awarded sole custody at equal rates. In many cases, the weighing up of interests when making custody decisions naturally favors the mother. And as institutions run by human beings, courts are not immune to gender bias. However, the black letter law on the matter is clear — mothers do not enjoy any legal advantages over fathers in custody proceedings. 

Discuss Your Concerns With an Attorney at a Stockton Child Custody Law Firm 

If you’re concerned about your prospects for obtaining physical custody, legal custody, or both, you should speak with an experienced attorney. To get started, please contact an attorney at the Stockton child custody law firm of McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.

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