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Is custody automatically given to mothers during divorce?

While some may argue that courts in the past favored mothers over fathers when it came to child custody disputes, that is simply not the case today. In fact, California law clearly states that a mother and a father "are equally entitled to custody" of their child.

However, there is one caveat to this rule: the father must be presumed to be the child's father under California law. A father will satisfy this presumption so long as he was married to the child's mother and the child was born during their marriage, or within 300 days of their divorce.

In most divorce cases, fathers will have little difficultly meeting this presumption -- meaning they will have the same rights to custody as mothers.

So if both are equally entitled to custody, how does the court decide?

If the parents are unable to reach an agreement regarding custody, the court may have to step in and decide for them. When making this decision, the court will focus on the child's best interest, meaning it will likely consider:

  • The health, safety and welfare of the child
  • The preference of the child, so long as he or she is old enough to "form an intelligent preference"
  • The nature and extent of the child's contact with both parents
  • Any past instances or allegations of domestic violence or abuse by either parent
  • Any past instances or allegations of habitual drug use or alcohol abuse by either parent

However, it is important to note that the factors mentioned above are in no way an exhaustive list. Indeed, there are many other factors a court may look at when determining child custody. To learn more, you should contact an experienced child custody attorney right away.

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