Although many believe that women have the upper hand when it comes to gaining child custody in divorce, family courts do not consider gender when making custody decisions. In California as in most other states, the judge will determine custody based on the child’s best interest.

Ideally, parents will share joint legal and physical custody in a divorce. Joint physical custody means that each parent will have significant periods of physical custody with the child, while the right to make important decisions on behalf of the child relating to health, education and welfare is part of legal custody.

Factors in the best interest determination

California courts strive to preserve the relationship between the child and both parents as long as neither parent is a danger to the minor’s health, safety or welfare. The court considers these factors when deciding what custody arrangement is in the child’s best interest:

  • Who has served as the child’s primary caregiver
  • The relationship and bond between the parent and child
  • The child’s age
  • The child’s physical and mental health and the health status of each parent
  • The ability of each parent to care for the child
  • Whether either parent has a history of violence and/or substance abuse
  • The child’s ties to the current home community, such as school and activities

Factors in denial of custody

Although ongoing contact with both parents is the default arrangement, a judge can deny child custody to either parent in the presence of certain circumstances. These include situations such as the following:

  • The child was conceived in a sexual assault and the father is seeking custody or visitation.
  • The parent has received a conviction of first-degree murder, physical abuse or child sexual abuse.
  • The parent habitually abuses alcohol and/or illegal drugs.

Thus, in California, a judge cannot award sole custody to the mother just because of her gender. A family law attorney can help parents protect their parental rights during a custody dispute.