Are Fathers Less Likely to Get Custody During a Divorce?

A back-lit and torn piece of paper with a mother, baby, and child on the left side of the tear and the father on the right side.

Many fathers are under the misconception that mothers are more likely to get custody of the children after a divorce. This leads to many of them not even seeking equal or shared custody because they don’t feel like they have a chance. However, this gender stereotype is not true.

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What Are the Chances of a Father Getting Custody?

First off, both parents have equal custody and rights during the divorce process, particularly if paternity has been established. According to the California Family Code, public policy mandates that children have frequent and continuing contact with both parents after the parents have separated or ended their marriage or relationship so long as long as domestic violence and/or substance abuse are not factors to the relationship.

That means that, technically, fathers' have equal chances of getting custody of their children.

Parents are encouraged to share the rights and responsibilities of raising their children as long as it is in the best interest of the child. For example, if the mother were to take the kids and leave the family home, the father has the same legal rights to take them back. This is not to encourage this type of behavior, just to demonstrate that, absent court orders, parents have equal unobstructed rights to the children.

In California, Fathers Have Equal Rights to Custody as Mothers

The courts determine post-separation custody and visitation based upon what is to be in the best interests of the child, which presumptively starts with joint custody. So, gender is not to be used as a bias to the overall decision.

In many cases, primary custody is granted to the mother, but that generally takes into consideration all of the circumstance of who has historically cared for the child, who the child is most bonded too, who is more available for the child's care or needs, etc.

Many factors are considered when choosing a custody agreement, such as the parents’ work schedules, parental involvement and level of cooperation with the co-parent. If the father has more flexible work hours than the mother, then he may have an advantage towards gaining custody. Things the courts consider include the status quo and co-parenting.

Status Quo

The courts look to see what practices are in place to care for the children prior to the separation or divorce and how long those arrangements have been in place. Courts will look to that status quo as the building blocks of future orders.

If the Father is the primary caregiver prior to the divorce then he can argue keeping that consistency is in the child's best interest. Judges will not always look to keep the status quo the same but you need to have solid reasons for requesting the change.

Questions that will be used to determent the status quo: What is the current caretaking pattern for the children? Who takes them to school, doctor's appointments and extracurricular activities? Men who have not spent very much quality time with their children may have a difficult time getting joint custody of their children once they separate.


California law favors co-parenting with open and productive parental communication. The Courts will also weight who is the more cooperative and sharing parent when deciding who is the best choice for primary custody, or if joint custody is the best option.

The courts have provisions that allow them to limit the custody of a parent if that parent is unwilling to effectively communicate, co-parent or if they are interfering with one parent's relationship with the child or improperly aligning or alienating the child from a parent. Interference can include a number of different behaviors:

  • Making disparaging remarks about the non-custodial parent to put the child against the other parent.
  • Encouraging the child to not see the non-custodial parent and otherwise alienating the parent.
  • Not getting the non-custodial parent's consent for important decisions about the children.

Both mothers and fathers play an important role in raising their children. Fathers have equal rights in custody, which is true now more than before.

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