Up until a few years ago, most states, including California, firmly embraced the tender years doctrine. Shortly after women first attained some measure of legal and financial rights, Caroline Norton, a divorced English mother who had lost custody of her children, convinced lawmakers to pass the Custody of Infants Act. This 1839 law set a presumption that children under age 7 should be raised by their mothers. In 1871, Parliament expanded the law, applying it to children under 16. The tender years doctrine soon found its way to California family courts, despite some objections that its gender preference violated the Fourteenth Amendment.
Just like one woman changed the legal landscape in 1839, one man did the same thing in 1979, when real estate lobbyist and divorced father James Cook successfully advocated for a joint custody law in California. Most states still have such laws, although most of them are weaker than the one in the Golden State.
Joint Custody in California
According to this resource, California law presumes that children of all ages benefit from consistent and frequent contact with both their parents. So, many judges like to see parents divide parenting time as equally as possible. Some common models include:
- Empty Nest: Most children of divorced parents travel back and forth between their parents’ houses. But in empty nest custody arrangements, the parents travel back and forth between the children’s house. For example, after Mother and Father divorce, the children continue to live in the family home while Mother and Father shuttle back and forth between the family home and another dwelling, usually on a bi-monthly or every-two-weeks basis.
- 3-2-2: Empty nest custody arrangements only work if the parents get along at least reasonably well, and that is not necessarily the case. In other situations, Mother has the children on Monday, Tuesday, and Wednesday, Father has the children on Thursday and Friday, and Mother has the children on Saturday and Sunday, and then the parents switch order the next week. There are several variations, such as a 2-2-3.
- Extended Weekend: A 3-2-2’s constant back and forth probably limits it to parents who live reasonably close together, e.g., both parents live separately in Glendale. If the parents are a little further apart, e.g. Mother in Burbank and Father in Pasadena, an extended every-other-weekend, from perhaps Thursday to Tuesday, every other holiday, and extended summer vacation usually works better. The time division is not quite as equal, but given the geographic limitations, such an arrangement might be as equal as it gets.
Empty nest custody arrangements also eliminate the pickup and dropoff drama that is in so many co-parenting relationships. In the other setups, many parents specify procedures (pull up in the driveway but do not come to the door, honk once but not twice, and so on). All these rules may frankly seem a little childish, but they often prevent emotional confrontations.
Child Custody Factors
Courts must decide custody according to the best interests of the children, and one of the primary factors in this determination is a party’s ability, and willingness, to co-parent. Some divorcing parents hire “bulldog” attorneys who bitterly contest every legal skirmish, and sometimes even create conflicts where none existed before. This technique nearly always backfires, because as Dalton observed in Road House, there is a time to be nice and a time not to be nice. Many judges reason, based on experience, that antagonistic divorce parties are antagonistic parents, and their orders often favor the other parent, to encourage co-parenting.
Some other factors in this determination include:
- Children’s Age: There is no age cutoff in California, so judges may based decisions on preferences that very young children express and ignore such pleas from older children, based on the facts in the case.
- Status Quo: If the current arrangement is working, even if it is not perfect, most judges prefer stability. The old saying is that the devil you know is better than the devil you don’t know.
- Domestic Violence: Most judges order social studies in these cases to help determine the truth of these allegations, rather than relying on the he said, she said back-and-forth that often occurs in divorce cases.
- Ability to Parent: It is illegal to base these decisions on gender, military service, and a few other factors, but it is not illegal to consider a parent’s work schedule and parenting role when the family lived together.
Many judges encourage parties who have been inactive with the children in the past to take more of an interest in parenting and help balance this last factor.
Many parents take the co-parenting by agreement philosophy a little too far. When changes arise, they make “side agreements” with the other spouse. But these agreements are unenforceable in a family court, and so if the other party unilaterally alters the agreement, there is no recourse. So, most divorce orders should probably be legally updated at least once every three years. Typically, judges grant such modifications if they are brought in good faith and based on changed circumstances.