Prepared. That is the best word for how parents should show up to a child custody case in California.
Yet, like the darkest cloud of gloom hanging over emotional family cases, misinformation on how the courts handle child custody continuously circulates as correct information. It’s one reason parents show up duped (or even forfeit) rather than prepared.
The Temecula child custody attorneys and California Certified Family Law Specialists of Wilkinson & Finkbeiner, LLP break down and correct the most notorious and atrocious myths surrounding custody litigation.
Myth: Moms Always Win
Fact: Legally, There is No Gender Bias in Child Custody Cases
Years ago, this myth would not make the top of the list; in fact, it wouldn’t be on it. Most states did automatically award custody to the mother if the child was in their “tender years,” usually five and under. But for the sake of complete historical accuracy, years and years before that (think Colonial times), custody automatically went to the father. So while it’s not surprising this myth still casts a dark shadow over the family courts, it is in fact a myth.
The legal “preference” in California is for both parents to share equal custody. Of course, if one parent is found to put the child’s health, safety or welfare at risk, than the courts will award the other parent custody- regardless if it’s the mom or dad.
It’s also important to remember the courts are deciding on two types of child custody: legal and physical. Just because both parents are awarded equal legal custody does not mean they’ll both receive equal physical custody. Physical custody is most likely where the heat of the battle comes; but again, nothing is assumed to the mother.
“Above all else, the court seeks to determine custody and visitation plans that appeal to the best interest of the child,” Wilkinson & Finkbeiner write. “The court will consider factors like the child’s age, his or her relationship with each parent, the child’s schedule and the parent’s schedule, education and development…and any other relevant factors.”
In short, neither parent should “give-up” on court litigation because of their sex…or their employment status, income or any other specific reason. Go to family court prepared, prove you want and are capable of being the primary caretaker and don’t assume a loss.
Myth: Teenagers Can Pick Who They Want to Live With
Fact: Children Have a Say, But They Don’t Make the Final Decision
When children are old enough to concretely voice their opinions and wishes – and in California, that’s 14- they may. The latest version of this law went into effect back in 2012 and requires a judge listen to the child’s wishes, though this right remains optional for the child. The only exception is if there is legitimate proof that doing so would cause the child harm.
Most people know that part though. The actual myth here is that the child’s wishes are always met. However, the law does not say a judge must comply. In California family courts, there is a difference between considering what the children want and requiring what they want.
Myth: Social Media is Not a Factor in Family Courts
Fact: Technology is Often Used in Family Courts
Technology is drastically and dramatically making room for itself in U.S. courtrooms- and it’s legal. While criminal cases predominately see evidence from various social media accounts, family courts are no exception.
One-third of all divorce proceedings mention the word “Facebook” at some point. In one case, a mother denied gang affiliations while fighting for custody; her Facebook account, ridden with pictures with other gang members and of her child adorned with a temporary gang affiliated tattoo, exposed her lie. As long as the Facebook page is not hacked – meaning the account is public or visible through an accepted friend request- it’s admissible in court.
Even professional social media accounts like LinkedIN can become evidence, especially when handling spousal or child support issues. For example, a woman claiming she had no previous work experience and therefore needed spousal support was denied after her husband’s attorney showed her LinkedIN profile filled with past jobs.
Don’t forget about every day text messages or emails, either. According to the American Academy of Matrimonial Lawyers, text messages are one of the top three elements of electronic evidence used in family courts.
Myth: False Domestic or Child Abuse Allegations Have No Consequences In or After Family Court
Fact: California has Outlined Strict and Severe Punishments for False Abuse Allegations
Parents who make false allegations of domestic violence or child abuse will lose custody of their children and be forced to pay a hefty fine. Witnesses who falsely testify and even the parent’s lawyer may be fined equally hefty, as well. Resorting to false allegations is never the answer, and beyond the aforementioned consequences, could adversely affect the relationship you share with your child later on.
If there is domestic or child abuse, however, do not hesitate to tell your attorneys or law enforcement. Together, they can work to protect your child from the abuser throughout the litigation process.
Myth: You Don’t Need a Child Custody Attorney to Help You Win
Okay, that doesn’t technically fall into this “myth and fact” breakdown. Neither parent is required to hire an attorney; however, there are undeniable advantages, especially when the other parent has chosen to do so. Attorneys who specialize in family law can explain the process in a language you understand, guide you through the system and fight to protect your custodial rights. Most importantly, qualified lawyers will ensure you are always prepared.