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Joseph, Family Law Attorney
Category: Family Law
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Experience:  I have over a decade of experience as a Family Law litigator
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In general, what are conditions in which court likely order

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In general, what are conditions in which court likely order 100% child custody to a mother, in case there are no significant problems (DV, financial, mental, etc.) on either sides? In California law (or US law), is it common that a mother get 100% child custody just because she is the mother? (In Japan, a parental authority belongs only to either a mother or a father (there is no joint custody), and I heard that court most likely give a mother 100% child custody just because of being a mother.)

My wife said that her attorney told her that she would likely be able to get 100% child custody for our 7 year old son if she wants. She said to her attorney that she is fine with joint custody, and the petition requests joint custody.

The petition's request itself is fine for me, however, I have been wondering why her attorney thinks my wife would likely be able to get 100% custody if she wish, while there is no significant problem on my side (no DV, no financial/mental/physical problems, etc.) And I am very concerned that her attorney might be thinking about some dirty trick.

There are many false statements in the declaration in "facts in support" of the petition, and one of them is stating that I have been threatening to take (kidnap) our son. The fact is that I have never do such threat, and my wife agreed with it. She said she has not told such a thing to her attorney. The attorney said to her that it is just "overstate" in order to speed up court process, by attracting attention of judges. I am really worried that if a petition were filed requesting 100% child custody to the mother together with such statement, and if the court believed it, the court would most likely award the mother 100% custody.

If the attorney was simply mentioning general tendency that a mother most likely can get 100% custody just because she is a mother, it is fine. (anyway the petition is requesting joint custody.) However, if 100% custody to mother is unusual when there is no obvious problems on the father, I am very concerned about this attorney.

Hello and thanks for choosing Just Answer®. I am a licensed family law attorney, and I will be glad to try and assist you.


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Customer: replied 6 years ago.
Hello, yes, I would like to know the answer. My question is the 1st paragraph. The rest is just explanation of the background. I just wanted to know if a mother has advantage about child custody in divorce in California/USA, when there is no significant problems on either side.

Quite some time ago, many judicial systems subscribed to something called the "tender years" doctrine. That doctrine held that children, especially young children, needed their mother. This was a theory that began many decades ago and was abolished around the 90's. As such, when the parents walk into court, they are presumed to be equal and it is up to each of them to demonstrate that they are the "better" parent.


With all that said, there are some judges that are very old-fashioned. If your case is assigned to such a judge, they may take the position that the mother is more accustomed to caring for the children while the father is more accustomed to earning a paycheck.


As to your situation specifically, I have no idea why the attorney is making statements about "100% child custody". Perhaps he is trying to make her overly confident, perhaps he is misleading her, perhaps your wife misunderstood. Regardless, I would suggest that such an outcome is very unlikely.


Please let me know if anything requires clarification.


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