While it may be more common to see mothers as the primary custodians of the children in a divorce, a mother’s custody rights are not guaranteed in California. There are some right particular to mothers in certain situations, though. Here we will cover the possible custody rights a mother has regarding her children, and how the court decides to grant them. 

Types of Custody

When referring to custody, be aware there are two types: physical and legal. These can be joint or sole/primary in each category. Physical custody refers to where the child lives and legal custody relates to decisions about the child’s life. These decisions can include:

 For more details on what the types of custody entail, read here

A Mother’s Presumptive Custody Rights

In California, there is no presumption of the mother being the first choice or primary custody holder. However, if a mother is unwed, under California Family Code Section 7610, she automatically gains sole physical and legal custody of her child upon birth. No legal action is required to assert her custodial rights. Unless there is a court order stating otherwise, the mother determines what contact the father has with the child. However, unless paternity is established, the mother has no right to child support from the father in this situation.

How Custody Is Decided

Instead of a presumption toward one parent or another, the California court uses a standard drawn from California Family Code Section 3011 that is based on the “best interests of the child” to decide which parent should have custody and to what extent. After the age of 14, the court may allow the child to choose who they want to live with. 

While courts may have historically favored mothers when granting custody, they now focus on the health, safety, and welfare of the child. Courts will consider who is the primary caregiver when granting custody, not the parent’s gender. This means who conducts the daily life of the child: who takes them to school and the doctor, who plans daily activities, helps with homework, and other similar elements.  The court will also consider other less easily measured factors such as the needs of the child based on their age, the child’s health, and the child’s emotional ties to a parent in making their choice. 

Rights to Child Support

Regardless of the custody arrangement, it is the responsibility of both parents to care for the child financially. If a mother has sole or primary custody, she’ll generally receive more support than if a mother with joint custody. 

Questions About Your Parental Rights?

If you have questions or concerns about custody and your rights as a parent, contact us at 714.456.9118 or send us an email at info@voneschlaw.com. We can help you assert and understand your custody rights as a parent in California. 

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