How to get sole custody of a child in California
A commonly asked question of Family Law attorneys is “how can I get sole custody of my child” here in California. The courts generally prefer a parenting plan where both parties have some access to the children, but occasionally requesting sole custody (also known as full custody) is necessary.
In order to get sole custody of a child in California one parent will generally have to prove to the court that the other parent is unfit. A showing will have to be made that the unfit parent has a problem with domestic violence, drug or alcohol abuse, or has otherwise demonstrated a history of disinterest in raising child.
What does “sole custody” mean in California?
Sole custody and full custody are used interchangeably in California Family Law courts, though the actual written laws use the words “sole custody.” Sole custody does not mean that one parent has the child 100% of the time. Instead it simply means that the other parent has not been awarded enough time so that they receive the label of “joint custody.” Usually if one parent has physical custody of the children 70% or more of the week, they are considered to have sole custody.
There are actually two different types of custody in California: physical custody and legal custody. Physical custody refers to who takes care of the child day-to-day including where they sleep, who takes them to school, who enforces curfews, etc. 'Legal custody' on the other hand refers to the right to make educational, healthcare, financial or other similar decision about a child. One parent can have a significant amount of physical custody and still maintain only 50/50 legal custody with the other parent. Thus, when making a custody request of the courts, the type of custody you are requesting becomes extremely important. While courts are accustomed to physical custody arrangements being somewhat fluid to accommodate for busy parent lives, legal custody requests tend to be more heavily scrutinized.
Finally, a third term is often used here on the west coast: Primary Custody. What is Primary Custody in California? Well it does not have a technical legal definition, but we use it to refer to parenting situations where one parent has more than 50% of the parenting time (physical custody) with a child.
Does it matter if you’re the mother or the father when seeking sole custody?
Nope, mothers and fathers have equal rights in these cases in California. It will not matter to the court. Therefore, arguments like “kids should have a mother” or “a boy needs to grow up with a father” do not hold much weight. California Family Law courts are laser-focused on the determining what situation is in the best interests of the child.
How to request sole custody in California:
There are typically going to be two situations when you will try request sole custody:
1. You are in the middle of a divorce and want to initially be awarded sole custody by the judge
2. You want to modify an existing child custody order after-the-fact in order to gain sole custody.
Both situations are going to revolve around the “best interests of the children,” or at least what the judge and family court mediator think is in the best interests of the children. Both situations will require you or your attorney to file an RFO or Request for Order. This is basic paperwork that informs the judge that you want something. Both situations will probably require you to participate in Family Court Services. In fact, filing of your RFO will usually automatically trigger an appointment with Family Court Services. During that appointment, a mediator will discuss the situation with both spouses and, if they’re old enough, the kids as well. The mediator will make a recommendation based on how everyone acted during the appointment and will give that recommendation to the judge. This is a high-stakes scenario and preparing for the mediation appointment with a professional in highly advised.
What do you need to prove to the court in order to be awarded full custody?
The easiest way to get sole custody is to have the other parent agree that you can have sole custody.
The second easiest way to get sole custody is to apply for sole custody when the other parent doesn’t respond or show up to court.
If the opposing parent is responds to the RFO court hearing request and gets involved then you will need to basically show that they are unfit. Perhaps there is a history of violence, incidents of sexual abuse, significant drug or alcohol problems, or ongoing run-ins with law enforcement. These are all situations that you have led to a family court judge awarding sole custody to the more stable parent.
As you might expect, in addition to trying to show that the other parent is unfit, you will also need to make a basic showing that you are a fit parent. This can be demonstrated by presenting evidence of a healthy home life, success with homework and school, and participation in positive extracurricular activities.
Can custody be modified in the future?
Yes, one parent can always file a new Request for Order and get back in front of a judge to ask for a custody “modification.” A modification is slightly harder to achieve than an initial custody order because the person requesting the change will have to prove there has been a “fundamental change in circumstances” that necessitate that change. For example, let’s say that Mom decides to move into an apartment instead of a house. Dad thinks that apartments are scary and dangerous, so he wants to request sole custody. This is not a fundamental change of circumstances. Houses and apartments are pretty similar so nothing is fundamental about this move.
An obvious example on the other side of the spectrum: one parent is arrested for dealing drugs and is expecting a significant prison sentence. This is a fundamental change in circumstances. Clearly every situation is different and judges will examine each unique scenario individually. The point is that you can’t go in and ask for a custody modification unless something relatively drastic has changed.
Will you be awarded sole custody?
Probably not. The court system here really pushes 50/50 custody or something close to it. Sole custody is generally for rare situations where a parent is unfit or unreachable. The reason that the court pushes so hard for 50/50 is that it is almost always in the best interests of kids to have some access to both parents. A good family law attorney can explain the outlines of these rules and give guidance on your particular situation.