When it comes to divorce cases and child custody, many men are surprised to learn that they have the same rights as mothers. In some cases, a father will incorrectly assume the opposite, and give up too easily during custody or child support hearings, resulting in an unfair separation agreement. So what are a father’s rights? And what are some of the common mistakes that fathers make during the custody process? This page will go through the law and four big mistakes that men commonly make in Orange County, California.
If you find yourself identifying with some of the mistakes mentioned on this page, don’t freak out. Help is available, and there is hope.
What the Law Says About Father’s Rights
California’s Family Code § 3020(b) states that as a matter of public policy, the law seeks to assure that children have “frequent and continuing contact with both parents after the parents have separated or dissolved their marriage.” The law also encourages “parents to share the rights and responsibilities of child rearing in order to effect this policy…”
Unbeknownst to many fathers, the law provides powerful rights to men equal to that of mothers. This is why it’s important that a father hires a help to help him understand his options and keep him informed of his rights. Too often, a father goes into a custody battle not knowing what his rights are, and assumes that an attorney would be a waste of time.
Continue reading to learn a few of the common mistakes made by Orange County fathers in custody and divorce cases.
Mistake #1: Assuming Fathers Don’t Have Rights
Sadly, many fathers seek legal guidance only after they’ve surrendered their rights to child custody and visitation. It is a decision they often live to regret. For many divorced men with children, the common assumption is that the law is biased against fathers. This is why it’s important a father consults with a qualified attorney whenever facing child custody or other divorce issues.
The law encourages frequent and continued contact with both parents. This means that a mother who seeks sole custody in an effort to keep the child away from the father will face an uphill battle—particularly if the former spouse she faces in court is properly represented.
The obvious exception is when the father stands accused of domestic violence or other criminal activities. However, even in cases involving a father who’s made serious mistakes in the past, there are steps he can take to improve his standing with the court.
In some cases, a father assumes that because the children (particularly young children) have lived continuously with the mother post separation, that the judge is likely to let the children remain continuously with the mother. While there is some truth to this, a father can still present strong arguments to the court as to why he should receive more custody. Such reasons could include a promotion at work, increased salary, or more time to spend with the children. Perhaps the mother has fallen on hard times and it is in the best interests of the children to stay with the father.
While some divorce cases might be presided over by judges who are biased in the favor of mothers, there are also appellate actions that can be taken to review a judge’s conduct. Simply put, a judge’s ruling isn’t necessarily the last word on the matter.
It’s important to remember, that despite the law’s neutral voice on equal rights for mothers and fathers, a good lawyer is still vital to helping a father make a strong case in court and maximize his chances for a favorable outcome. The arguments presented, and the way in which the case is litigated, will have a major impact on a child custody order, visitation order, as well as how payment of child support is calculated.
Mistake #2: Not Seeking Proper Order Modifications, Then Not Paying Child Support
While a judge’s order must be obeyed, it can be modified under certain circumstances. For instance, if a father is ordered to pay a certain amount of child support, and he switches his job, experiences a reduction in pay, or is faced with large financial obligations (such as the illness of a close relative), he might be able to request a reduction in the amount of child support he is required to pay.
Too often, men who fall on hard times will avoid making ordered payments and the debt begins to pile up. This can lead to fines, stress, added interest, and in some cases, jail time.
An extreme example of what can happen to those who don’t pay child support was reported in a 2007 issue of the Los Angeles Times. A Chinese national was ordered by a Los Angeles County court to pay $6,000 a month in order to support his young daughter. However, he left the country for China and didn’t make the required payments. While attempting to return to the U.S. two years later, he was denied entry into the country because of the money he owed. Before being allowed to return, the man was forced to settle with Los Angeles County’s Child Support Services to the tune of $311,491.
While this case highlights the experience of more affluent child support dodgers, it is folks who struggle financially that often have problems with child support payments. A recent article written by Prison Legal News, a publication of the Human Rights Defense Center, discussed the impact of child support orders on poor families. The article cited a study that found 76 percent of parents who owed past due child support earned $10,000 or less annually. The study also found the poverty rate of custodial parents who received child support payments was 28.8 percent.
An April 19, 2015 article in the New York Times explored the issue of fathers who fail to pay child support and wind up in jail as a result. The article noted that problems often begin with child support orders that exceed the parent’s ability to pay.
Problems compile as the parent falls further and further behind in payments. Depending on the state in which the child support is owed, a person who drives a truck for a living could have his license suspended, further hindering his ability to pay child support, and face jail as a result.
“Problems could arise when such tactics were used against people who had little money,” the article noted. “The vast majority of unpaid child support is owed by the very poor.”
The purpose of discussing these stories is to first let visitors to this site know that failure to pay child support, while a common mistake, doesn’t necessarily make a father a bad parent.
In the 1980s and 1990s, politicians and public interest groups inflated the stereotype of the “deadbeat dad”, which led to the implementation of aggressive collection tactics nationwide. While many of these tactics are appropriate for wealthy fathers who simply refuse to pay their fair share, they are damaging to those who struggle.
Fathers need to be aware that working with a lawyer could actually make financial sense in the long run. In many cases, requesting a modification is a relatively simple procedure — and can save a father money.
If the issue isn’t about child support payments, but rather a custody order, modifications can also be made if necessary. However, a common mistake fathers make in this regard is relying on verbal agreements with the mother.
For instance, the court might have ordered a custody agreement in which the mother has physical custody of the children a majority of the time. The mother might agree verbally to let the father have custody of the children for longer than the order required. However, if she suddenly decides to reduce the amount of time the children spend with the father, she can do this relatively easily because of the court’s order.
In addition, if the father is paying child support based on the amount of time specified in the court’s order, but in reality he is spending much more time with the children, and providing for them financially during this time, he could be overpaying.
Mistake #3: Engaging in a Legal Arms Race
There are many instances in life — including divorce and custody cases— when people assume that if they throw enough money at a problem or “outspend the competition,” they’ll achieve victory. Sadly, there are more than a few bad actors in the legal profession who are inclined to exploit this type of thinking.
While the reasoning might make sense to a father who’s desperate to gain custody of his child, such a strategy primarily serves the interest of the attorney who uses the situation as an opportunity to collect more fees.
There are a number of reasons why intentionally outspending your former spouse is a bad idea. For starters, under California Family Code § 271, the court can award attorney’s fees to the opposing side based on the extent to which the father’s conduct “frustrates the policy of the law to promote settlement of litigation”.
This means, if you’re filing frivolous claims throughout the divorce proceedings, rather than working toward a fair settlement, you could be ordered to pay the attorneys’ fees and costs of the opposing side.
Another portion of the family code, section 2030, states that when one spouse has better financial access to legal counsel, the court can make an award of attorneys’ fees in the other spouse’s favor. This means that a father who flaunts his money in court by paying the multiple fees to file excessive motions effectively hurts his own case.
Simply put, it’s not a good idea to irritate the court. Frivolous filings will only hurt a father’s credibility, and in the long run, they are counter productive.
In rare cases, a father who files numerous and frivolous claims also runs the risk of being declared a vexatious litigant by the court. If this happens, he won’t be able to file any motions unless first getting permission from the judge.
Mistake #4: Capitulating Too Easily
Representing a departure from the types of litigants described in the previous section, some fathers go to great lengths to meet their financial obligations in custody cases — in some cases beyond what an order requires. These fathers pay for the personal expenses of their former wives or girlfriends out of a sense of obligation, or perhaps to keep from “rocking the boat”.
For fathers who whittle away at their savings or go into debt to pay these expenses, personal goals get sidelined. This isn’t right. In addition to putting additional strain on the father’s financial situation, it can also discourage the mother from sufficiently contributing to the rearing of her own children.
Consulting a Family Lawyer
Divorce cases and custody hearings are complex matters — they can also be incredibly emotional events. No matter how accomplished and capable a father might be, he should never attempt to go to court without objective and qualified legal representation.
Fathers often have a poor understanding of the family legal system – they have been heavily influenced by television and movies. This understanding does not accurately reflect his rights and opportunities under the law, and unfortunately, a father who has the wrong attitude about California family law is destined to come up short.
Often times — contrary to stereotypes — fathers want to be an integral part of their children’s lives, and want to carry their fair share of the load. Discussing these issues with a family attorney and developing a game plan will increase a father’s chances of reaching the ideal settlement in a divorce, separation, or custody case.