What to Do if a Child’s Father Wants to Avoid Paying Child Support by Getting Custody

California law is based on the principle that both parents must contribute to the costs of raising their child, and must do so proportional to their own financial resources. Here is what to do if your child’s father wants custody to avoid paying child support.

Custody refers to guardianship bestowed upon an individual by the court, and child support is a court-decided matter as well. If a mother wishes to stop a father from gaining custody to avoid paying child support, she will need to go before a judge and explain why doing so would harm the child’s well-being. A judge must consider the child’s well-being above all else in child custody and child support cases— this includes a father’s wishes to spend more time with their child.

California’s Child Custody Law

Section 3011 of California’s family law code states that a custody decision must always be made with the child’s safety, welfare, health, and best interests in mind. A judge is tasked with determining whether a child benefits from being in the custody of both, one, or neither of their parents based on information brought forth in a child custody case. A child’s parent may be granted physical, legal, or joint physical and legal custody. If a judge did not grant a child’s father custody in the initial custody case, then the father must prove that the circumstances that caused the denial of custody have changed, and that the child will benefit from the father having custody.

Related: Child Custody Laws in California: What You Need to Know

California’s Child Support Law

California’s Family Code 4055 explicitly lists that both parents will need to allocate part of their income to child support. It also establishes that a parent’s income and the amount of time they spend with their child (including the amount of time a child resides with them) are the two main factors taken into consideration when determining child support. Code 4055 benefits the child’s father, but does not automatically enable him to stop child support payments. The father will still need to allocate part of his income to support his child. If the child spends more time residing with the mother than the father, the father may still be ordered to pay child support. If the time a father spends with his child increases, the amount of child support the father is ordered to pay to the mother would most likely decrease; however, the father would not be exempt from needing to financially care for his child.

What a Mother Should Do to Prevent the Avoidance of Child Support

A judge grants a parent custody only if doing so is in the child’s best interests and will not hinder or endanger the child’s well-being. If a mother wishes to prevent a father from gaining custody, she must prove that the child would not benefit from the father having custody. If the court had previously denied the father custody, a judge will only change the custody order if circumstances have changed; the mother should prove that the circumstances of the case have not changed.

However, if the court had previously given the father legal custody and not physical custody, the father does not have to prove a change in circumstances to gain physical custody. If the father has a form of custody, but has neglected their child or failed to share an equal burden of responsibility, then a mother can argue that he should not be granted additional custody. If a father is fit to care for their child, then a mother should not focus on proving that the child’s well-being would be hindered. Instead, a mother should focus her efforts on ensuring that California’s Family Code 4055 is respected. The judge must allocate the costs of raising a child evenly and proportionally to the parent’s financial resources. If the child’s father is able to gain custody, he can still be forced to pay child support if:
He has a higher income than the mother

  • The amount of time he spends with his child is less than the amount of time the child spends with their mother
  • The mother has less disposable resources despite spending an equal amount of time with her child and having a similar, or higher income than the father

Related: 7 Factors That Determine Child Support in California

FAQs About Fathers Wanting Custody to Avoid Paying Child Support

Can my child’s father have joint custody and still pay child support?

Under California law, a parent can have legal and physical custody and still be asked to pay child support. Your child’s father is not automatically exempt from paying child support simply because he gained custody. His income, resources, and time spent with the child will affect a court’s decision.

Related: Joint Custody Child Support in California: Who Pays?

Can a child’s wishes affect a father’s ability to gain custody?

A child’s wishes will be taken into consideration by a court; however, it does not guarantee that the father will not gain custody.

Contact Her Lawyer

If your child’s father wants custody to avoid paying child support, get your free consultation with one of our Child Custody and Support Attorneys in California!