Does the Mom Automatically Get the Kids in a Divorce?

In the past, the law used to have a presumption in favor of the mother receiving custody in a divorce. However, that has now been changed to give both of the parents an equal chance at obtaining custody of the children. Thus, the mother is not automatically entitled to custody as a matter of right. Both mothers and fathers should have a Santa Barbara and Ventura custody attorney protecting their parental rights.

The Court Will Use the Best Interests Test

In deciding custody cases, the court will look at the best interests of the children. The overarching concern is that the children are in the best place to further their health, safety, and welfare. After that, the court may disqualify one parent from receiving custody if they have a history of abuse of the child, or if they have a substance abuse problem.

Then, the court may look to stability as a deciding factor. A judge recognizes that children in a divorce are going through enough turmoil in their life and wants to minimize disruption to the extent that they can. Therefore, a court may choose an arrangement that maintains as much of the children’s prior situation as possible.

This means that if one parent was the primary caregiver before the divorce, they are likely to get custody of the children. It does not matter if the caregiver was the mother or the father. The law is gender-neutral in this regard. The court also will consider physical distances and will not want to make the children move away from school, friends and other family members, if possible.

Nothing Is Automatic in Custody Cases

Neither parent should think that a court will automatically rule a certain way. Regardless of the statistics of custody cases, each parent has a chance to make their arguments to the court. The court cares about the children’s lifestyle without an eye towards gender. The court may look at the ties that the child already has with each parent when making a decision.

To be clear, even the parent who does not receive custody will almost always be able to see their children. California’s policy is that the children benefit from continuing contact with both parents.

You may find it best to focus on securing an arrangement where you have joint physical and legal custody of the children. If you have the ability to care for the children, this may be the best-case scenario. Many divorcing couples end up in this type of situation, and it is one that often works well for the children and the parents. You may be better off focusing on joint custody than primary or sole custody unless you have certain factors in your case that demand sole custody.

Even in a situation where sole custody may be appropriate, the court may look to grant supervised visitation so that a parent who has had anger or substance abuse issues can still develop a relationship with a child in a safe and monitored setting.

Ventura and Santa Barbara Family Law Attorneys Helping Parents

If you are going through a divorce or separation, you do not have to go through it alone. You should seek out legal advice early in the process to fully protect your custodial rights. Call the Santa Barbara and Ventura law firm of Bamieh & De Smeth, PLC at (805) 643-5555 or contact us online to schedule an initial consultation where we can start discussing your family law case.