Father’s Rights Prevail in Custody Case
Judge grants custody of six year old to San Diego engineer; Dad’s companionship with son is cited.
Until the last five minutes of February trial, neither Mom nor Dad had a clue how the court was leaning regarding the primary care and custody of the parties’ six year old son, Jonathan. Mom and Dad had separated in January 1995 when Jonathan was five. Before Dad moved out of the family home in July, he located a new position in engineering with a Sorrento Valley electronics firm. Dad shared custody of Jonathan after the move during alternate two week periods when Jonathan stayed with Mom at the family home and then with Dad in his new home in Poway where Dad enrolled him in school.
Mom was unemployed during most of the marriage and remained so after separation keeping herself available for full time care of Jonathan right to the date of trial. Mom refused to look for work before trial despite a vocational report issued by Dr. Jay Fair in July finding that Mom was capable of earning up to $1200 monthly as a clerk or bank teller.
The parents met for pretrial mediation with Family Court Services on October 13 when Mom insisted on having full custody, while Dad requested that the joint custody plan remain in force. Arguing that Dad had been neglecting Jonathan’s health needs, Mom acknowledged Dad’s homework support for Jonathan and proposed that Dad could assist with homework at r house. The Mediator recommended full custody to Dad, in surprise to both Mom and her lawyer. She noted, “[T]he father is really more child oriented than is the mother…. When it comes to time spent, playing with, tutoring and being a companion to the child, the father seems to be the leading participant…. While [Mom] complains that she does not have the money for the activities that the father and child enjoy, the father talks about activities with the child that are essentially free, such as playing board games.”
Following the mediation report, Mom and Dad met for a settlement conference and were able to settle all issues except custody, visitation and support issues. Mom continued to demand full custody of her son.
At the Trial
At trial Dad opened testimonial evidence with a history of the family and patterns of nurturing and caring for Jonathan by both parents. He explained how the joint time share had been working after separation, and described his school and play activities with his son.
Mom was called as an adverse witness to the stand by Dad and FRLC cross-examined her motives and plans for full custody, including prior requests by Mom to Dad-to allow Mom to move to Orange County with Jonathan so she could live closer to her parents.
Mom called her step-father as a witness who expressed his view that Mom had the skills to care for Jonathan on a full-time basis. He admitted on cross-examination that Mom had discussed moving with Jonathan to Orange County. He also denied with some pause Dad’s claim that when visiting her parents with Jonathan, Mom tended to have a party life style while her Step-Father and her Mom cared for their grandson. After closing argument, Judge Tobin noted that the evidence supported awarding primary custody to Dad based on history of companionship and care for his son. Mom was awarded time on alternate weekends and every Tuesday. The The court observed that the mediation recommendation was supported by the evidence and provided for Jonathan’s best interests.
Following the court’s announcement of its decision, Dad blocked lawyer’s departure from the court room. With moist eyes he shook his lawyer’s hand while repeating ‘thank you – thank you’. FRLC reminded Dad that it had been his love, care and companionship for Jonathan that won the day, not FRLC. The mediator’s findings had been crucial. FRLC also felt that Dad’s modest request to continue the joint custody plan in response to Mom’s demand for full custody had influenced the mediator.
Last word is that Mom has completed her bank teller training and is now working.