A fiduciary is an individual in whom another has placed the utmost trust and confidence to manage and protect property or money. The relationship wherein one person has an obligation to act for another's benefit. A fiduciary relationship encompasses the idea of faith and confidence and is generally established only when the confidence given by one person is accepted by the other person.  In a fiduciary relationship, one party has an obligation to act for the best interests of the other.  The most commonly cited fiduciary relationship is between an attorney and a client.  The attorney, regardless of how they may feel personally, must act in their client’s best interest.

A couple going through a divorce has a fiduciary responsibility to each other with respect to their community property until that property has been divided.  This does not mean either side has act for the best interest of their soon to be ex-spouse at the expense of themselves.

In California, divorcing couples are required to file forms with the court that truthfully disclose all their assets including bank accounts, real estate, income, and other high value assets, such as cars, boats, vacation homes, jewelry or art, creating that fiduciary agreement. 

If one party submits these forms with a false or inaccurate account of assets, they are breaking that faith and confidence.

California is a community property state, meaning all assets that a couple acquired during the course of the marriage are usually divided equally between parties.  Whether one person earns or receives more income or property, those assets are jointly owned.  When a party attempts to hide some of those assets from their partner they are not holding up their part of the fiduciary responsibility. 

If a husband, for example, knows that divorce is on the horizon and decides to skim some funds from a joint account into a private account, or if a wife were to use their joint account to buy a horse, or a new condo, or take lavish vacations, they are not living up to their responsibility.  Lowering your bottom line by moving funds or going on spending spree is the same has hiding assets.

Assessing a property’s actual value as opposed to the perceived value is best done by an unbiased third party, to reduce the likelihood by one or the other undervaluing the property.  This deliberate understatement of value can make it difficult for the court to accurately calculate the entirety of marital property.  Understated value will also cause your spouse to then counter with a stated value that is well above the actual value.  Each side is going to want to represent the numbers in a way that benefits their case.

The penalties for hiding assets can be significant when the attempt to do so is brought out into the open.  If found hiding assets, the court may impose sanctions.  Since your unethical actions forced a court procedure, you may also find yourself saddled with court costs, including your spouse’s legal fees.  If the assets were found after the divorce was finalized, you can be subject to contempt of court and the judgment can be voided.  Ultimately, when found out, your liability will be far greater than the value of the assets you attempted to hide.

When you work with us as you go through your divorce, we will take a complete look at your assets, property, and income to make sure that everything is being reported in a fair way.  We will also, through the process of discovery, look at what your spouse is reporting to ensure that everything seems to be in order.  If we see inconsistencies we can bring in experts, such as forensic accountants to see what the numbers are telling us.

Representation of divorce cases in movie and television always come down to a vicious court battle.  Screaming attorneys and judges pounding the gavel makes for good drama, but the truth is far different.  Judgments are often bases on a formula.  Also, being a community property state takes a lot of the guesswork and deliberation out of the picture.  When it comes to determining the value of marital assets, so much of it is also based on formulas or on current appraisals.  Hidden assets cause the basis of almost all financial decisions to be incorrect.  This leads to a longer and drawn out process and more legal problems.
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As you go through the process of divorce, if you believe your spouse is hiding assets, we will work with you to bring the truth to light.

Going back to school can be a very exciting time for a kid.  They get to see friends they have not seen in a couple of months and they get to relive their summer through the stories they get to share.  When family issues arise, going back to school can become very stressful and daunting for them.  Kids do not know that no one knows that their parents were just recently divorced.  Kids have a very self-centered view of the world, so kids may feel different when they head back to their familiar setting.  They may think that they are being stared at or even made fun of behind their backs.

We have discussed the importance of co-parenting, even if you are not getting along with your ex-spouse.  Kids need to be reassured by both parents that they are loved and that nothing has changed for them in school.  Their friends will still be their friends.

In some cases, after a divorce, the kids may move and therefore start in a new school.  This can make a difficult situation tougher.  Kids are now dealing with two levels of stress: the stress of a new school and that internal thought that their parents’ divorce has somehow effected them.

Whether your kids are in a new school or staying at their old school, it will help if your kid’s teachers and principal know of the situation.  They can be your eyes and ears in school to make sure your child is not having difficulty or even acting out in school as a reaction to the divorce.

Many schools now have support groups for kids of divorce.  Seek out these groups. They are a great way for kids to work through their issues in a school setting and learn that even though their parents are no longer married, they are still loved and when it comes to school, nothing has changed.

It is very common for children to have behavioral issues after a divorce.  There are some things you should be looking out for, including issues concentrating, signs of low self-esteem, inappropriate behavior in and out of the classroom, underachieving in the classroom or in other extra-circular activities, or significant changes in your child’s normal behaviors.

You cannot possibly be there with your kids throughout the day so have to rely on the school to let you know about behaviors as they happen and not wait until a report card or parent-teacher conference, which could be months after the behavior is noticed.

When kids are younger, or if they have developmental delays, such as autism spectrum disorder, they may not know how to express themselves.  They may not even know how to express how they are feeling.  This is what leads to changes in behavior or even signs of anxiety or depression.  Work with your kids’ teachers and with the school’s psychologist to help your kids work through this new part of their lives.

​Your kids may need more attention than usual during this transition period.  Don’t just rely on their words, but watch their actions and listen to the feedback from the school.  Keep a positive attitude at home regardless of what is going on with your ex.  A positive and nurturing environment is important for kids to know that even though there are major changes at home, those changes are not their fault, and you are still there to support them.

In California, there are two types of contempt of court proceedings. Direct contempt, which occurs when someone misbehaves in court or behaves disrespectfully towards the courts or its proceedings, and Indirect Contempt, when a party fails to obey a judge’s orders.  The repercussions can range from financial restitution to actual jail time, so parties may want to think long and hard before they decide to disobey a judge’s mandates.

First and foremost, be aware that violating a custody order is breaking the law under Penal Code section 278.5.  You may not think about it this way, as criminal court, family court, and civil court can seem like entirely different animals due to differences in procedure, but an order given by a judge holds the same weight regardless of venue.  If a criminal judge made an order understood to mean certain jail time if violated, a law-abiding citizen would do their best to adhere to that order…the same consideration needs to be given to a family court judge when rulings are made in matters of child custody.

The court takes into consideration a variety of factors when determining custody.  If a custody agreement already exists between parents, a judge is likely to take that under advisement.  It is not just the parents who can voice their desires, but also the children, depending on what age they are.  Suitability for parenting is also a major consideration…Is either parent emotionally, mentally, physically, and financially capable of providing care for the child?  What are the changes that have occurred in the child’s life and what are the likely changes that will happen once the dust settles on the proceedings?  Lastly, what are the relationships between all the parties, parents and children included?  Is there a history of abuse, neglect or animosity between the child or either parent or between former spouses?  None of these are arbitrary reasons to settle a custody dispute in one way or the other.

It may not always be what a parent wants when a ruling is made.  Everybody wants to believe they are the best person for the job when it comes to being a full-time parent, but if you completely remove all emotion from the equation, sometimes the painful truth is that what is in the best interest of the child, and this includes long term, is often contrary to what one parent or the other wants.  But if there are circumstances that cause you concern for your child’s wellbeing, begin by consulting your attorney, so that he or she might advise you as to your legal course of action to rectify the situation.  This is because you do not want to be the one in violation of the judge’s orders.  Likewise, if you know your ex is in contempt, your response should be in the courts.

To prove contempt by California’s standards, one must first have a valid written court order.  This means a clear and concise written order detailing exactly when, where, and for how long a child must spend with each parent.  It is incredibly difficult to prove contempt on vaguely worded orders.  Usually, both parties have received copies of the court order to sign or are present in court when it is given.  There are occasions when one party is not able to make it to court or was not served with the written court order which can make it a challenge to prove knowledge of the order at all!  And finally, the accused must have violated the court order willfully.  This doesn’t mean your ex arriving late with your child due to traffic or a meeting that runs long, but rather not allowing that child to spend the agreed upon number of nights and weekends with you even though they know the terms of the written order.

At the end of the day, is it worth it to violate a court order to save yourself some money or to circumvent a custody agreement when the repercussions of those actions can mean steep fines or ultimately reduced custody for the accused?  Likewise, it may want to be considered that bringing a contempt of court proceeding forward to recoup past or partial child support payments may be more expensive than what you are owed.

The ins and outs of enforcing a court order can be confusing and complicated.  When it comes to something as emotional as your child’s health and well-being, it is tempting to consider fighting fire with fire, she wants to keep my kid from me, then I will just ignore the custody order too.  Don’t do it!  Remember, if you think your child is in danger, call the police.  If think your ex is violating the custody agreement OR if you think you might be served with contempt of court actions, it is better to have an experienced attorney navigating those complex legal waters for you.  There is too much at stake to improvise when it comes to the welfare of your children.

Tracy Duell-Cazes is a Certified Family Law Specialist by the California State Bar.  If you having issues related to child custody or there is a contempt of court possibility around child custody, contact Tracy at the TDC Family Law at 408-267-8484.

The dissolution of a marriage is never easy, even when amicable.  But when things are contentious and there are children involved, a tender situation can turn into a turbulent maelstrom of raw emotions, name calling, and conflict. You may be concerned about your ex’s parenting abilities, stressed about child support or financial issues, exhausted by conflict, or worried that you will never be able to get past all those relationship resentments that led to the divorce.  But for joint custody to benefit your offspring, it is vital to for you to overcome these challenges and develop a civil working relationship with your ex to provide your children with the stability, security, and close relationships with both parents they need.

Barring serious issues such as domestic violence or substance abuse, having both parents actively involved in their children’s daily lives- or co-parenting - is the best way to continue the standard of care and close relationships with both parents that they experienced prior to the inevitable disruption that occurs with divorce.  Putting aside relationship issues and hurt feelings that often accompany an acrimonious split can be easier said than done, but research suggests that the perception of a cordial relationship between co-parents can have a profound effect on the overall mental and emotional well-being of children and the incidents of depression and anxiety.

One of the things parents often lose sight of is that they are divorcing from a marriage, but NOT a family. "You're a parent first and a divorced parent second, so don't let the divorce play a significant role in your decision-making," says Montreal divorced dad Phil Clavel, the author of Dad Alone (Vehicule Press, 2003), a guide for divorced fathers. "Make decisions as a mom or dad, not as a divorced mom or dad." No matter how angry or upset you may still be about the divorce, be careful what you say when small ears may be listening. You don't want to give your children the mistaken impression that they were to blame for the breakup.
 
Remember that a child is a connection that you will always have, through years of graduations, birthdays, holidays, and family milestones.  If you want to your children to experience those events with a sense of security and well-being, you will make every effort to maintain a good working relationship with your co-parent.  AND, if you want to be a part of all those special moments, you will do your best to put aside any negative comments or expressions about your ex when around your mutual offspring.  Children are smarter than you think, and they want to be allowed to love and accept both their parents. 

By using only positive or at the very least neutral language about their other parent, you are effectively giving your child permission to behave naturally around both parents.  No one wants to be the bad guy that talks smack about Mommy or Daddy.  That way leads to withholding of invitations to special events for fear of causing undo stress during important occasions. 

Hostility makes co-parents work against each other, rather than as a team towards the same goal of creating happy, healthy well-adjusted little humans. Sometimes these adversaries use their children as messengers, or they withhold financial support or visitation to punish the other parent.  Rather than being a focused parent who acts for the kids' sake, it's really a way of excusing yourself from your co-parenting responsibilities.  And if you consider yourself as a team of one, the loser isn’t your ex.  It is your shared offspring. 

Consider carefully what you hope to gain with every communication.  If you don’t want to burn all your bridges and cause your kids to resent you or spend thousands on therapy, you will refrain from being rude, sarcastic, or accusatory when communicating with him/her. Above all, remember that your children's welfare must always be your priority. Contemplate the long-term effects on your children of everything you and your ex say and do, and you can create the best possible co-parenting situation.
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Joint custody arrangements can be draining, maddening, and anxiety inducing.  It can seem impossible to surmount all the pain and bitterness your shared history brings up. Making shared decisions, interacting with each another at drop-offs, or just speaking to someone you’d rather forget about can seem like irresolvable tasks, however, the benefit to your children is worth making the effort. Despite the challenges, though, if you want the best for them, you can and must develop an amicable working relationship with your ex for the sake of your children.

If you have reached what you believe to be the end of your marriage, depending on your circumstances you may choose to either legally separate or file for divorce.  The difference between the two is simple.  When legally separated, regardless of living or financial arrangements, you are still married.  This means that both parties have chosen not to terminate their marital status and are not legally free to marry someone else. 

Ending this important relationship can be heart-breaking and/or infuriating, depending on the circumstances behind it.  You may have some hope of salvaging it peaceably before it comes to divorce.  Legal separation may seem less drastic, while divorce really represents the death nell to a part of your life.  Legal separation does NOT mean your marriage is over while divorce emphatically does.  If you find out you want to stay married AFTER the divorce papers have been finalized, you will have wasted a great deal of time and money needlessly.  This is why some couple can remain legally separated from months to years! 

There are quite a few other practical reasons that a couple might choose to file for separation as opposed to divorce. Among them religious beliefs, familial obligation or financial entanglement.  If neither ex is interested in pursuing a new relationship outside the marriage, putting off the actual divorce may seem like a way of easing into the more permanent legal status.  Whatever your reasons for separating, it is essential to protect yourself upfront and have all the necessary issues settled and agreed to in writing.  These include division of assets, responsibility of debts, spousal support (alimony) amounts, etc., issues that will eventually have to be addressed once you have filed for divorce.
 
In addition to these considerations, in California there is the added advantage of hastening the divorce process by first filing for legal separation.  The reason for this is that California, a no-fault state, does not allow for legal separation unless BOTH spouses agree to that route or one spouse defaults after having been served with the petition.  According to Legal Separation VS. Divorce in California, by Beverly Bird, “This means he must either refuse to participate in the process, allowing it to proceed without objection, or file a response to your petition, consenting to the legal separation. Otherwise, you have no choice but to file for divorce instead.”  

The requirements to file for legal separation are not as restrictive as they are for a divorce.  In order to file for divorce in a certain California county, you must reside in that county for at least three months and in California for at least six months immediately prior to filing the court papers.   This is not the case in legal separation, which has no time restrictions, which means you can file your paperwork with the Court right away which will result in a shorter time to finalize the case if you want to file in your new County of residence.  You can file the separation petition immediately, and then later amend that Petition to divorce once you have lived in that county for the required time.  The three/six month requirements begin from the moment you file that first Petition for Legal Separation. 

So many news articles today seem to favor legal separation over divorce for financial reasons, but they don’t take into consideration the long-term emotional effects of living in that limbo state of not being part of a married couple while still technically being married.  How can you move on, from a situation that obviously didn’t work, towards a new life without actually ending that situation?  Do you want to eventually meet someone else?  How will you explain the situation of not being able to fully commit to them because you are still married to someone else?  Even if this past experience has soured you on the whole concept of matrimony,  being labeled a “technical cheater” is perhaps not the best face you want to show to a prospective partner of any kind.  And the most harmful side effect to staying perpetually separated, if you have children, is the hope you are unconsciously giving them that their parents might get back together and reassemble the family they remember through rose colored glasses.  Finalizing that divorce may be just the signal everyone needs to adjust to the new reality.

The dissolution of a marriage is never easy, even when amicable.  When things are contentious and there are children involved, a tender situation can turn into a turbulent maelstrom of raw emotions, name calling, and conflict. You may be concerned about your ex’s parenting abilities, stressed about child support or financial issues, exhausted by conflict, or worried that you will never be able to get past all those relationship resentments that led to the divorce.  But for joint custody to benefit your offspring, it is vital for you to overcome these challenges and develop a civil working relationship with your ex to provide your children with the stability, security, and the close relationship children need with both parents.

Barring serious issues such as domestic violence or substance abuse, having both parents actively involved in their children’s daily lives, or co-parenting, is preferable.  This will allow the children to maintain contact and a close relationship with both parents just as they had prior to the divorce.  Putting aside relationship issues and hurt feelings that often accompany an acrimonious split can be extremely difficult. Research suggests that the perception of a cordial relationship between co-parents can have a profound effect on the overall mental and emotional well-being of children.  It can also lead to lower levels of depression and anxiety among children.

One of the things parents often lose sight of is that they are divorcing from a marriage, but not a family. "You're a parent first and a divorced parent second, so don't let the divorce play a significant role in your decision-making," says Montreal divorced dad Phil Clavel, the author of Dad Alone (Vehicule Press, 2003), a guide for divorced fathers. "Make decisions as a mom or dad, not as a divorced mom or dad." No matter how angry or upset you may still be about the divorce, be careful what you say when small ears may be listening. You don't want to give your children the mistaken impression that they were to blame for the breakup. 

Remember that a child is a connection that you will always have, through years of graduations, birthdays, holidays, and family milestones.  If you want to your children to experience those events with a sense of security and wellbeing, you will make every effort to maintain a good working relationship with your co-parent.  If you want to be a part of all those special moments, you will do your best to put aside any negative comments or expressions about your ex when around your mutual offspring.  Children are smarter than you think, and they want to be allowed to love and accept both their parents.  By using only positive or at the very least neutral language about their other parent, you are effectively giving your child permission to behave naturally around both parents. 

Hostility makes co-parents work against each other, rather than as a team towards the same goal of creating happy, healthy, well-adjusted little humans. Sometimes these adversaries use their children as messengers or they withhold financial support or visitation to punish the other parent.  Rather than being a parent who focuses on acting for the kids' sake, it is really a way of excusing yourself from your co-parenting responsibilities.  And if you consider yourself as a team of one, the loser isn’t your ex.  It is your child. 

Consider carefully what you hope to gain with every communication.  If you are rude or accusatory of your ex while speaking with your children, you may cause them to be confused, or resentful or uncomfortable to be around you.  If they take your accusations to heart, your actions may cause your kids to also be uncomfortable around your ex.  Now your child has no one they feel safe around.

Remember that your children's welfare must always be your priority. Contemplate the long-term effects on your children of everything you and your ex say and do.  This simple consideration can lead to a co-parenting agreement that is acceptable to both of you while fostering a healthy and safe environment for your kids.
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Joint custody arrangements can be draining, maddening, and anxiety inducing.  It can seem impossible to surmount all the pain and bitterness your shared history brings up. Making shared decisions, interacting with each another at drop-offs, or just speaking to someone you’d rather forget about can seem like an irresolvable task. Despite the challenges the benefits of creating an amicable working relationship is well worth it when you see how happy your children are.

According to every major media outlet in existence today, Valentine’s Day is the day to celebrate love and happiness for couples everywhere…which means, those who have UN-coupled, whether by divorce or legal separation, may be left feeling a bit lonely and adrift. 
However, depending upon how you choose to approach the holiday, you can use February 14th as an opportunity to celebrate your new life and a new opportunity to be as happy as you deserve.

The first thing you need to realize is that you are not alone. Without the constant barrage of jewelry commercials and chocolate ads telling you that EVERYONE EVERYWHERE is in love, you must realize that there are millions of people on this earth in the exact same position that you find yourself in.  This means you are in good company! 
Also, think about all those friends and family members you have lost touch with during your marriage.  Reaching out to those loved ones you want to reconnect with provides more than just a balm to your loneliness, but also a chance to build yourself a nice support system going forward as a single person.  Going to a party, seeing a movie, or even just meeting for drinks with some friends are all great ways to fill the hours of that day, renew ties with old friends or build them with new ones , and establish yourself in the new social position you now find yourself in.

Maybe you don’t feel like being social, which is totally understandable.  You are still healing and need time to lick your wounds.  Never underestimate the value of self-care.  Man or woman, we can all stand to spend some time focused on the needs of the body, the mind, and the spirit.  Candles, bubble baths, a good book or even a tub of cookie dough ice cream can go a long way towards a feeling of comfort.    Send yourself a little something that you have been wanting…like that crockpot you didn’t get for Christmas or that autographed Game of Thrones figurine!

And if you have children, it can become the MOST fun to make them feel loved.  Making homemade Valentines with construction paper never loses it’s magic when assisted by copious amounts of glitter and metallic markers!  A couple of hours making cut out cookies with sprinkles is an easy way to make memories to remind you that there is more that one kind of love to be celebrated on Valentine’s Day!

At the end of the day, try to come to an understanding of what February 14th actually means to you.  Do you want to include others in your plans or would you rather focus on self reflection?  Whatever you choose, do things you love and treat yourself as you deserve to be treated.  With love.

If it seems that more couples announce divorce proceedings after the winter and summer holidays, a new study seems to bear that out.  Associate sociology professor Julie Brines and doctoral candidate Brian Serafini, presenting research at the annual meeting of the American Sociological Association in Seattle, found what is believed to be the first quantitative evidence of a seasonal, biannual pattern of filings for divorce.  This is based on analyzed filings in Washington state between 2001 and 2015.

There seem to be multiple reasons for these patterns, the first and foremost being the preservation of the “cultural sacredness” of holidays when it comes to families.  During this time, it is generally frowned upon by friends and outsiders to ruin this special family time by breaking up said family.  Nobody with an ounce of sensitivity wants to be thought of as a monster by their loved ones.  And struggling couples may see the holidays as an opportunity to mend relationships and start fresh. The idea being, we’ll have a happy Christmas together as a family or take the kids for a nice vacation and things will be better.

These heightened expectations can backfire when met with disappointing results.  You are spending a concentrated amount of time with the partner that you are unhappy with, hoping against hope that things will be different, for a new beginning or at least something different.  But holidays are emotionally charged and stressful for most couples and, for those struggling with marital problems, can expose fissures in a marriage. This consistent pattern in filings, the researchers believe, reflects the disillusionment unhappy spouses feel when the holidays fail to meet those expectations.

This also allows both parties to say that they gave it one last try before throwing in the towel.  With the new year, resolutions for a new beginning lead spouses to get their lives in order-including health and finances.  Consulting an attorney at this point becomes another step towards that end.  Similarly, the onset of warmer, longer days and increased activity elevates mood enough to motivate people towards change. Brines wonders if similar forces are at play with divorce filings.

The pattern persisted even after accounting for other seasonal factors such as unemployment and the housing market. The researchers reasoned that if the pattern was tied to family holidays, other court actions involving families — such as guardianship rulings — should show a similar pattern, while claims less related to family structure wouldn’t. And they found exactly that: The timing of guardianship filings resembled that of divorce filings, but property claims, for example, did not.

It’s therefore reasonable to conclude that when the holidays fail to reinvigorate that happy family feeling, people may finally make those difficult decisions regarding the future of the family unit. 

If nothing else, what Brines and Serafini have shown us with their collective data, is that summer vacations, tax time and the whole "New Year, New Me" trope are quantifiable calendar indicators that may affect when people entertain the notion of the legal dissolution of marriage. In addition to demonstrating which times of year are most convenient for such serious, life changing resolutions, they also reveal theoretical breaking points that lead to these conclusions.

The holidays are a normally stressful time, even if your family hasn’t just gone through a painful separation.  In addition to all the typical stressors of the season, divorced parents are faced with a whole new set of complications and challenges: figuring out plans, blending traditions and deciding where festivities will be held.

It is always best to minimize the effects of these changes by first and foremost communicating with your ex and making every attempt to be on the same page.  The holidays can lead to heightened conflict between divorced parents, but remember, your kids take their cues from you!  If you appear to be stressed, angry, or upset, your kids will pick up on that and act accordingly—which is the last thing you want! 

It is easier said than done even if your divorce was amicable.  Remember the one thing you will always have in common is that you love your kids and want the best for them.  Whether a parent has sole custody or shares decision making, the first set of holidays following the divorce will be the most difficult for all family members.  You are still figuring out what works, dealing with the loss of those shared family customs, and scrambling to come up with new traditions.  Even though parents may be dealing with their own sense of grief, the holidays are a time when it becomes more important than ever to attempt cordiality.   Every commercial, movie, and TV program out during this time reinforces the cultural belief of togetherness and family during the holidays, and children are particularly sensitive to feeling lost or displaced because of drastic changes.

Sit down with your former spouse before the madness begins, away from the listening ears of curious offspring.  Hammer out some sort of equality regarding gift giving, so that no one feels like they are “losing” at parenting.  Maybe set a spending limit or agree on a joint gift to promote that equilibrium.  Remember that if you make parenting a game where someone wins and someone loses, the only person that really loses is the child being bickered over. 

So much is changing, and some traditions will have to be scrapped all together.  Many people choose to have an open conversation with children about which traditions are most important to them, and how to keep them up under these new circumstances, sometimes without one parent or the other.  Maybe one parent does a gift on Christmas Eve and the other does the stockings… Families can also use the new arrangements as an opportunity to bond over establishing new traditions.  The goal of the holiday time is to make happy memories for the children’s future.
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The plan going forward should establish in detail where everyone is going to be, at what time, and with the needs of the children being the primary focus.  Agreements with respect to parental communication, decision-making, accommodating changes, and spending time separately and together is crucial  to avoiding crises during what is a special and sacred time for children and parents.  Children will thrive when spending time with both parents and extended families, especially during the holidays.

If you were to just look at the numbers, you may say that there is definitely a bias toward the mother.  After all, 75% of the time, the kids end up living with Mom.  That number can be misleading since there is another number that you should know when it comes to deciding where the kids primarily live: 91%.  In 91% of cases, the decision to have the kids live with Mom are decided outside of the court, either through mutual agreement, mediation, or another alternative dispute resolution method such as Parenting Coordination.   In most cases where there is a bias accusation, these numbers are not taken into account.

In California, Family Code 3040 is very clear as to the order of preference when it comes to custody and at the top of the list is “To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent.”
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In deciding about either parent, the code also clearly states that in deciding on which parent should have custody, the court and law look to “which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent.”

The guiding principle when deciding who the children should be living with is based on the best interests of the child and from the wording of 3040, it is clear that California believes that a child is better off with consistent and continuing contact with both parents. 

There are many other things a judge will take in account including:

• The child’s health, safety and welfare
• Any history of violence or substance abuse
• The nature and amount of contact with both parents
• Continuity and stability with regards to home and school life,
• The ability of each parent to care for the child
• The age and developmental level of the child
• The child’s emotional ties to the parent
• The child’s preference, depending on the child’s age and capacity to reason

When it comes to a father seeking custody, there are several things that need to be taken into account, with the biggest thing being time.  Historically, in most families, the father works longer hours and earns more of the family income.  Unfortunately, this usually means the father has less quality and bonding time with the children.  Seeking custody, especially full custody would require much more of a time commitment and either parent would have to make some big decisions about their priorities.  As every case is different with their own set of circumstances, you should never start with any assumptions.  Call Tracy to discuss your specific case.