Harvard Law School
M.A. Columbia University
B.A. Yale University
Mediator, Judge Pro-Tem
Certified Family Law Specialist
licensed by the State Bar of California
Stan is a member of the
San Diego North County Bar Association .
Licensed to practice in California, Maryland, Washington D.C., & Georgia
Fathers in divorce worry about their parental rights. That may have been justified thirty years ago, but it isn't anymore. Not only is California divorce resolutely no fault, it is also resolutely gender neutral. The days when Mom got custody and Dad got visitation - every other weekend and Wednesday nights for pizza - are long gone. California judges are committed to the proposition that both parents have equal parental rights and responsibility for their children. Not only that, the judges are also committed to the proposition that both parents have a affirmative obligation to parent their children.
Part of this has to do with the gender neutral way the Family Code is written, but in my experience a larger part has to do with the developments in child psychology. Thirty years ago the concept that children could be or should be firmly "bonded" with each of their parents was not common currency among family law judges. Now it is, and it ranks right up there with stability as a consideration in child custody cases. Exactly what bonded means is hard to say. Whether or not it's happened yet is also hard to say.
However, in practice the bonding concept appears to have been more beneficial to a fathers rights in divorce than it has to Moms. It doesn't take rocket science to figure out why. Despite women's liberation, in most families Moms usually spend much more time than Dads with their children and are much more involved with their children's emotional development than Dads are, particularly when their children are young.
As a result, the conventional wisdom is that children become firmly bonded with Moms earlier than they do with Fathers. In one landmark move away case, one of the factors cited by the court for its decision to change custody to Dad when Mom moved away was the custody evaluator's observation that the children appeared to be fully bonded with Mom, but not yet fully bonded with Dad, who had been doing his best to eliminate the disparity since the couple separated. The message seems to be, if Mom is already fully bonded with the kids, but Dad isn't, Dad should be given a larger share of custodial time to enable him to catch up before it's too late.
This idea can have disastrous results for Mom in some circumstances. Let's say the initial custody determination gives Mom sole physical custody and a 75% timeshare. Perhaps Dad travels frequently in his job and and is simply unable to spend more time with the child. Mom works a full time job and moves mountains to get the child to school on time, help with homework, attend extracarricular activites, and generally provide a warm and loving home for the child. The child is her life.
After a few years of this, Dad gets a new job, no longer travels, and is suddenly able to devote just as much time to the child as Mom has. He asks the court to reverse the timeshare to resemble eqaul parental rights and time share accomodation. The child is now fully bonded with Mom, but only barely bonded with Dad. All other things being equal, the court is likely to grant Dad's request for equal parental rights . From Mom's perspective, all her love and hard work has been rewarded by the loss of her child to Dad, a crushing blow. From the court's perspective, it's Dad turn to bond with the child, and the child's turn to bond with Dad.