Child Custody Disputes

Andrea Kaye and Stan Prowse Legal Eagle Radio

The California Family Code is Explicitly Asexual Regarding Child Custody

Proposing to slice a child in half to resolve a child custody dispute between divorcing parents would certainly be frowned upon today. On the other hand, children in the middle of a custody battle between Mom and Dad frequently tell their therapists they wish they were dead. What’s going on here?

The contrast between today’s conventional wisdom and the conventional wisdom of your grandparents is a good place to start looking for an answer. Back when Dad wore a grey flannel suit, Mom wore a house dress, and the kids ate Wonder Bread, people weren’t supposed to get divorced in the first place. When they did, the children were disposed of without much fuss. Mom got sole legal and physical custody. Dad got visitation every other weekend and every Wednesday evening for pizza. And they were too dumb to know there was anything wrong with that!

Then along came women’s liberation, sexual equality, day care, and getting in touch (if you were Dad) with your feminine side. Perish the thought that children were naturally better off being nurtured by Mothers who stayed at home, or that Fathers were excused from the daily grind of parenthood by going off to work in the morning.

The California Family Code is now explicitly asexual when it comes to who gets the kids, Dad and Mom each have the same right and the same obligation to parent, and each has the same duty to work to support themselves and their offspring. Joint legal and physical custody is presumed, visitation crops up only when one parent is a genuine threat to the child’s life and limb, and “time share” is the thing we argue about most of the time.

In order to resolve a child custody dispute, both parents will need to get over their anger.

The problem in resolving a child custody dispute is that Mom and Dad are usually pretty angry with each other by the time their marriage goes down the drain, so there has to be a winner and a loser. However, sharing the kids equally or close to it is neither winning nor losing, and proves to be emotionally unacceptable. In order to resolve a child custody dispute, both parents will need to get over their anger.

Mothers tend to discover exceptionally strong proprietary feelings towards their children, as well as a burgeoning conviction that their soon to be ex-husbands have been and always will be lousy parents. Not to be outdone, Fathers tend to entertain similar proprietary feelings, as well as a competitive mandate not to be outdone at the parenting game by their soon to be ex-wives. Of course, it is only a coincidence that Dad’s sudden commitment to being the Best Dad in the World will, by increasing his time share, reduce his child support payments.

As a result, war over the children is sooner or later declared, all too often with the willing assistance of the attorneys. The Levis trademark comes to mind - a pair of pants harnessed to two mules pulling in opposite directions. All the counseling, therapy, and custody evaluations in a judge’s arsenal cannot undo the damage to the children or provide, at least in most cases, a resolution sure to be in their best interests.

Your grandparents’ conventional wisdom is not coming back. Modern divorce is no fault, and winning or losing a divorce is nowhere to be found in the California Family Code. Get used to it and get over the anger, or the only losers will be your children.

San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.