Father’s Rights-What You Need to Know

A Practical Guide for What You Need to Know About Father’s Rights

The issue of father’s rights in Orange County child custody and visitation cases is a very often-discussed topic.   People often ask questions like, “Do fathers have the same rights as mothers?”, “Does the court have a bias against fathers?”, “As a father, how can I get custody of my child?”, “When can a father petition the court for custody rights?”, “Are mothers given preferential treatment in Family Court?”, and “I’ve heard that it is very difficult for a father to obtain custody rights, is that true?”

These are all excellent questions, which are somewhat difficult to answer because there are so many variables. However, we have attempted on this page to provide you with answers to these questions, and answers to other commonly asked questions concerning father’s rights. This page provides an insight into what you need to know as a father in relation to child custody and visitation cases. This page is also helpful for mothers to see and recognize what types of questions fathers ask before they initiate litigation in the Orange County Family Court.


The first thing that a father seeking rights to his son or daughter must recognize is that there are an inordinate amount of variables that come into play when a child custody and visitation case is filed. Every case is different, and the court treats every case differently. When you speak with an attorney about your rights as a father, the attorney should be able to articulate the plausible outcomes of your case given the facts as you described them to the attorney. In our experience, when a client is honest and forthcoming with the facts that are involved in their case we can provide them with a pretty realistic idea of what may ultimately happen in their case. We also provide a game plan so that the client has the best possible chances to succeed in court. The variables that often exist in a child custody and visitation case may include:

  • The Family Court judge plays a significant role in these cases. While judges are not supposed to have any bias whatsoever, they often do. Some judges are more open to the idea of fathers playing a more significant role than others. We have experience dealing with all of the Family Court judges in Orange County.
  • The distance between the parents’ homes is important. The closer a parent is to the other parent, the higher likelihood that there will be an opportunity for more frequent and continuing contact.
  • The amount of time that a father has spent with a child prior to the filing of a paternity case is crucial. If a child is two years old, for example, and the father has never even seen the child, there is a very low likelihood that the father will be given any significant parenting role at the outset of the case. Conversely, a father who has spent nearly every day with the child will have a much higher likelihood in court.
  • The relationship between parents is an important aspect that the court will consider in ordering custody. The court does not appreciate a mother who frustrates a father’s relationship with the child, absent any compelling reason to do so. The California Family Code sections that describe which parent should have “primary” custody dictates that it is in a child’s best interest to be placed with the parent that will facilitate the other parent’s relationship. (See Family Code 3040)

Planning for filing a case

Fathers that are considering filing an action to seek custody of their child should plan ahead. Custody cases usually end up in court under one of three different types of family law actions. Those actions are domestic violence, divorce, and paternity. Whichever type of action ultimately leads to the court having to make a decision about child custody and visitation, all of the family code sections that instruct the court are the same. The court primarily looks at what is in a child’s best interest. Fathers preparing to file a case need to really take the time to think about what is in their child’s best interests. Having a child focused mindset going into a custody case will become evident to the court over time. Using words like “my child” as opposed to “our child” is the start of that proper mindset.

Fathers considering filing a paternity or other custody case should also make sure to document the contact he has with the child as well as communications with the mother. This kind of evidence is invaluable with the court action. Keeping a journal to include a calendar is very helpful and can be attached to an affidavit filed with the court (also called a declaration). In addition, communications with the mother may be important to show that the mother is frustrating contact, not recognizing the father’s significant role in the child’s life, and so forth. Or, those conversations could show that the parents communicate well together, which is also very helpful.

If the father has any concerns over the mother’s parenting abilities, they should begin to obtain evidence of that prior to filing. Ways to gather that information include talking with and obtaining statements from third parties including friends and family, social media posts including Facebook and Twitter, and other documentary and photographic evidence.

Finally, fathers that are well prepared to stand in front of the judge will fare better in court. Take a parenting class prior to filing the case. Read books about how to care for a baby. Offer to help the mother in any way you can, including buying things that the child will need and providing some voluntary child support ahead of time.

Preparing for mediation

Counties in the state of California differ in regard to their rules relating to the role of mediation in a custody case. Mediation is mandatory in all counties. In some counties, a mediator will meet with the parties prior to their being a court case and they will issue a recommendation to the judge if the parties do not reach an agreement. In Orange County, however, the mediator does not make a recommendation to the court. As a result, it provides a good opportunity for the parents to realistically discuss parenting plan options. Having the opportunity to mediate prior to standing in front of a judge is priceless. Go into the mediation with a good frame of mind and open to discussions. While in mediation, you have control over your agreements, but when you stand in front of the judge the judge will ultimately make a decision and it is out of your control.

Dealing with bias in Family Court

The United States Constitution, California Constitution, and the California family code all provide instruction to Superior Court judges, which include Family Court judges and commissioners, to refrain from having any bias for or against a person based on their gender. In practice, however, bias does occur in a muted fashion that is not overtly recognizable. Family law judges may be predisposed to a mother playing a more significant role than a father in a child’s life. Other judges may be more open to the father playing a significant role earlier on. Most judges will understand and base their orders on the fact that a father’s role should increase over time as a child gets older. Many fathers are frustrated because judges often order a mother to assume a primary custodial role when a child is very young. There are physiological reasons for this of course, including the fact that babies are often breast-fed or have much more contact with a mother initially (for example, because the mother is able to take an extended maternity leave from her employment). As a result of this, fathers seeking paternity and custody orders should think about framing their requests in terms of stepping up time with the child over a particular amount of time. It is important to note that a family law attorney with significant experience in custody matters in Orange County can play a significant role in avoiding bias in the courtroom.

Time-frame for filing a custody action

A father can seek custody rights of a child who has been born and they can also seek custody rights of an unborn child. It is permissible for a father to file a paternity case, for example, even if the child is still in the mother’s womb. It is very uncommon for a father to file such an action, but it is possible. Usually fathers wait until the child is born to see what kind of cooperation they will receive from the mother before they file a case. In any event, a father should heed the advice above for preparing to file a case.

Filing for a paternity or divorce case involving child custody and visitation can be extremely complex. It is critical that a parent seeking custody has quality family law representation. Our firm offers free, initial consultations where we discuss options based on the facts of a particular case. Call us today to set up your free, in person consultation with our divorce specialists.