Questions regarding custody and relocation

[tallen2k4]

What is the name of your state (only U.S. law)? CALIFORNIA



My daughters father and I were never married however he did sign a declaration of paternity and is on the birth certificate. We split up 6 months ago and in that time he has never came to see our daughter. He lives 3 hours away and any time he's seen her Ive taken her to him (he claims he cant come here because of his work schedule but if situations were reversed I dont care what I'd have to do I'd find a way to see my child!) He's seen her maybe 3 or 4 times in the past 6 months.

As you know, the economy here in california is very bad. It is nearly impossible for me to afford a home on my own. I would like to move to ohio, where my fiancee lives and I have a job waiting and a hous. but I'm not sure what the laws on that would be. My ex and I do not currently have any established custody order (never been to court) If and when we do go to court I have numerous emails to him asking him to callme to set up a visit, asking him to call and "talk" to his daughter, telling him he needs to be more involved in her life etc. I also have pictures of him smoking marijuana, text messages threatening my life, text messages where he admits to use of hard drugs (meth) and other things. He has a history of domestic violence, 2 DUIs, 2 under the influence of a controlled substance (meth) and a drunk in public.

My question is can I move before a custody arrangement is established or do I need to go to court first? And if I go to court do you think they'd allow him any sort of custody or visitation He has supervised visitation with his 5 year old which he hasnt been to in 4 months he claims his ex is the reason why he hasnt gone but her and I are friends so I know that to not be the case.

 

[LdiJ]

What is the name of your state (only U.S. law)? CALIFORNIA

Please do not quote.

My daughters father and I we were never married however he did sign a declaration of paternity and is on the birth certificate. We split up 6 months ago and in that time he has never came to see our daughter. He lives 3 hours away and any time he's seen her Ive taken her to him (he claims he cant come here because of his work schedule but if situations were reversed I dont care what I'd have to do I'd find a way to see my child!) He's seen her maybe 3 or 4 times in the past 6 months.

As you know, the economy here in california is very bad. It is nearly impossible for me to afford a home on my own. I would like to move to ohio, where my fiancee lives and I have a job waiting and a hous. but I'm not sure what the laws on that would be. My ex and I do not currently have any established custody order (never been to court) If and when we do go to court I have numerous emails to him asking him to callme to set up a visit, asking him to call and "talk" to his daughter, telling him he needs to be more involved in her life etc. I also have pictures of him smoking marijuana, text messages threatening my life, text messages where he admits to use of hard drugs (meth) and other things. He has a history of domestic violence, 2 DUIs, 2 under the influence of a controlled substance (meth) and a drunk in public.

My question is can I move before a custody arrangement is established or do I need to go to court first? And if I go to court do you think they'd allow him any sort of custody or visitation He has supervised visitation with his 5 year old which he hasnt been to in 4 months he claims his ex is the reason why he hasnt gone but her and I are friends so I know that to not be the case.

You are free to move with your child to Ohio, but if you do so, you take the risk that dad will rush to court in CA, get jurisdiction established there, and convince a judge to order you to return the child to CA pending the outcome of the custody case. You and the child would have to reside in Ohio for a full six months, before Ohio would have jurisdiction.

It would be safer to get custody settled in CA, and to have permission from the courts to relocate with the child to Ohio.

 

[tallen2k4]

You are free to move with your child to Ohio, but if you do so, you take the risk that dad will rush to court in CA, get jurisdiction established there, and convince a judge to order you to return the child to CA pending the outcome of the custody case. You and the child would have to reside in Ohio for a full six months, before Ohio would have jurisdiction.

It would be safer to get custody settled in CA, and to have permission from the courts to relocate with the child to Ohio.

I have started the paperwork on the California self help desk for custody/visitation and support. One on of the papers it states that I would not be able to leave the state at all (to visit or move) until the case is settled. How long does it typically take to settle a case? I plan on visiting family in Ohio for 2 weeks in May and wonder if I should file after I return from my visit. Also how hard would it be to get an order to relocate granted/approved and how long do you think it would take?

 

[LdiJ]

I have started the paperwork on the California self help desk for custody/visitation and support. One on of the papers it states that I would not be able to leave the state at all (to visit or move) until the case is settled. How long does it typically take to settle a case? I plan on visiting family in Ohio for 2 weeks in May and wonder if I should file after I return from my visit. Also how hard would it be to get an order to relocate granted/approved and how long do you think it would take?

Are you sure that the form states that you cannot visit out of state until the case is settled? That is not typically the case. Generally the wording is that you cannot remove the child from the state, but that refers to actually relocating the child, not for vacation purposes.

I would suspect that you would have to expect the case to take a minimum of six months unless you and dad are able to come to an agreement quickly. Even then however, you should probably allow at least 3 months.

 

[Tex78704]

I have started the paperwork on the California self help desk for custody/visitation and support...

If you have not yet actually filed anything or served the father papers, you should immediately STOP what you are doing and speak to an attorney first before proceeding further. You should be able to line up at least a couple of free initial consultations with family law attorneys in your area.

In the case of a child born out of wedlock, in which no custody proceedings have been filed in court, and in which the father has not been actively involved, and there is no eminent risk of harm to the child, the likelihood of a mother being ordered to return to the state just because the father rushes to court is far less likely than is often implied here. The most likely scenario is that if the mother has already relocated prior to suit being filed, the court will take jurisdiction over the case, and allow the mother to stay where she is until the custody issues are resolved.

Even then, given CA is a state where there is a legal presumption in favor of relocation, and given the stated specifics of this case, and if the mother has already relocated, the odds are much in favor of the child not being ordered to return except for scheduled visits.

In this instance, if a legal proceeding has not yet began in CA, it may be best to just relocate and wait to see what, if anything, the father does. If he does not take legal action within the time it takes to establish residency in your new state, then CA will lose jurisdiction over the child, and any custody issues will have to be litigated in the child's new home state.

So speak to at least two or three family law attorney's BEFORE initiating any legal action on your own. Some attorneys may suggest you file in CA first, others that you just run with the wind. Listen to the one that makes the most sense to you.

 

[Ohiogal]

If you have not yet actually filed anything or served the father papers, you should immediately STOP what you are doing and speak to an attorney first before proceeding further. You should be able to line up at least a couple of free initial consultations with family law attorneys in your area.

In the case of a child born out of wedlock, in which no custody proceedings have been filed in court, and in which the father has not been actively involved, and there is no eminent risk of harm to the child, the likelihood of a mother being ordered to return to the state just because the father rushes to court is far less likely than is often implied here. The most likely scenario is that if the mother has already relocated prior to suit being filed, the court will take jurisdiction over the case, and allow the mother to stay where she is until the custody issues are resolved.

Even then, given CA is a state where there is a legal presumption in favor of relocation, and given the stated specifics of this case, and if the mother has already relocated, the odds are much in favor of the child not being ordered to return except for scheduled visits.

In this instance, if a legal proceeding has not yet began in CA, it may be best to just relocate and wait to see what, if anything, the father does. If he does not take legal action within the time it takes to establish residency in your new state, then CA will lose jurisdiction over the child, and any custody issues will have to be litigated in the child's new home state.

So speak to at least two or three family law attorney's BEFORE initiating any legal action on your own. Some attorneys may suggest you file in CA first, others that you just run with the wind. Listen to the one that makes the most sense to you.

So basically, Tex, what you are saying in the bolded portion is listen to whoever tells you what you want to hear regardless of the legal reality. The legal reality is it is possible for her to be forced to return the child. The legal reality is it is a possibility that CA will keep jurisdiction as long as one parent lives there. Should I continue?

 

[mistoffolees]

So basically, Tex, what you are saying in the bolded portion is listen to whoever tells you what you want to hear regardless of the legal reality. The legal reality is it is possible for her to be forced to return the child. The legal reality is it is a possibility that CA will keep jurisdiction as long as one parent lives there. Should I continue?

I agree. OP should really straighten it out in court before leaving. CA is not as strict about parents leaving the state with the kids as some states are and given that Dad has not seen the child much, there's a good chance that she'll get permission to take the kids.

And if for some reason, the court does NOT grant permission, it's better to find that out before packing up and moving halfway across the country.

What I would suggest is going to court with a request for permission to move, a proposed new long distance parenting plan and offering to pay the transportation costs. If she does that, odds are very good that she'll get what she wants.

 

[CourtClerk]

I would also suggest that Tex go back and read that statute he keeps touting... she doesn't HAVE custody and the code does NOT mean that you can remove the child from the jurisdiction of the court. CA has on MANY occasions denied relocation. There isn't quite the presumption you think we have.

Don't give her false hope, unless you want to represent her and you can guarantee the outcome.

 

[Tex78704]

I would also suggest that Tex go back and read that statute he keeps touting...

I would suggest it appears you are unable to properly interpret the plain letter of statutes or comprehend CA case law.

California Family Code Section 7501
(a) A parent entitled to the custody of a child has a right to change the residence of the child, subject to the power of the court to restrain a removal that would prejudice the rights or welfare of the child.
(b) It is the intent of the Legislature to affirm the decision in In re Marriage of Burgess (1996) 13 Cal.4th 25, and to declare that ruling to be the public policy and law of this state.

•In In Re Marriage of Burgess, the California Supreme Court declared that custodial parents seeking to relocate with their children do not have the burden of proving that the move was "necessary." Following the 1996 decision, the California legislature made the Burgess opinion the law by codifying it in Family Code §7501. This change in the law ushered in a period in California of very few limits on the ability of custodial parents to move with their children.

•In the 2004 decision in In Re Marriage of LaMusaga, the California Supreme Court imposed a limit on the ability of custodial parents to move with their children. In the LaMusaga opinion, the court stated that non-custodial parents could seek a change in custody when the custodial parent decided to relocate with the child if they could show the move was a detriment to the child.

•In response to the LaMusaga opinion, Senate Bill 1482 was submitted to the state legislature in 2006. This bill was the second attempt by the legislature to abrogate from the LaMusaga opinion. It sought to preclude non-custodial parents from introducing specific types of evidence to contest custody during a move-away petition, including evidence of the impact of the move on the parent-child relationship. The bill was eventually pulled from consideration after massive public criticism.
[B]http://knowledgebase.findlaw.com/kb/...1309417_1.html[/B]

...CA has on MANY occasions denied relocation. There isn't quite the presumption you think we have...

The legal presumption is still present, since statute 7501 remains unchanged. Although what you are suggesting here is that the CA legislature doesn't have the presumption or public policy mandates it thinks it has, and that the courts are circumventing the law?

But just because the CA courts have denied relocation on MANY occasions as you noted, this does not invalidate or even weaken the presumption. Presumptions are rebuttable, and in those cases properly rebutted.

It is also a good bet the CA courts have GRANTED relocation on MANY occasions, and that the presumption was enough to tip the scale in favor of that.

And CA case law has not done a heck of a lot to change the legislative intent of the statute, which is as it should be. With the exception of opening the door wider to allow a change of custody as a result of a relocation, but which still does not preclude the need for a strong best interest analysis to support a change in custody.

...the code does NOT mean that you can remove the child from the jurisdiction of the court...

What you are saying here does not make any sense in the context of the statute or the jurisidiction the court maintains over the child under UCCJEA

So basically, Tex, what you are saying in the bolded portion is listen to whoever tells you what you want to hear regardless of the legal reality. The legal reality is it is possible for her to be forced to return the child. The legal reality is it is a possibility that CA will keep jurisdiction as long as one parent lives there.

Should I continue?

Unless a court order says otherwise, the mother is absolutely within her legal rights to move to Timbuktu if she wishes.

While it is true one legal reality is the court could order her return, another legal reality is she could shoot herself in the foot by filing a pro se custody case in CA and not being allowed to relocate, when she could have otherwise relocated. Especially where the father already lives three hours away and does not appear to have the resources or inclination to go to court to mount an aggressive fight to have the child returned.

So what she CAN do, versus what she SHOULD do, are very much different.
There will not likely be a concensus by attorneys on the proper course of action here. Some will take a conservative approach, others a more aggressive approach. And each course of action would be legally valid, although with differing degrees of risk vs reward.

If she speaks to several attorneys and they all say the same, then OP would be a fool to do otherwise. If it's split, then she will have to make her own decision.

 

[Just Blue]

I would suggest it appears you are unable to properly interpret the plain letter of statutes or comprehend CA case law.



•In In Re Marriage of Burgess, the California Supreme Court declared that custodial parents seeking to relocate with their children do not have the burden of proving that the move was "necessary." Following the 1996 decision, the California legislature made the Burgess opinion the law by codifying it in Family Code §7501. This change in the law ushered in a period in California of very few limits on the ability of custodial parents to move with their children.

•In the 2004 decision in In Re Marriage of LaMusaga, the California Supreme Court imposed a limit on the ability of custodial parents to move with their children. In the LaMusaga opinion, the court stated that non-custodial parents could seek a change in custody when the custodial parent decided to relocate with the child if they could show the move was a detriment to the child.

•In response to the LaMusaga opinion, Senate Bill 1482 was submitted to the state legislature in 2006. This bill was the second attempt by the legislature to abrogate from the LaMusaga opinion. It sought to preclude non-custodial parents from introducing specific types of evidence to contest custody during a move-away petition, including evidence of the impact of the move on the parent-child relationship. The bill was eventually pulled from consideration after massive public criticism.
[B]http://knowledgebase.findlaw.com/kb/...1309417_1.html[/B]




The legal presumption is still present, since statute 7501 remains unchanged. Although what you are suggesting here is that the CA legislature doesn't have the presumption or public policy mandates it thinks it has, and that the courts are circumventing the law?

But just because the CA courts have denied relocation on MANY occasions as you noted, this does not invalidate or even weaken the presumption. Presumptions are rebuttable, and in those cases properly rebutted.

It is also a good bet the CA courts have GRANTED relocation on MANY occasions, and that the presumption was enough to tip the scale in favor of that.

And CA case law has not done a heck of a lot to change the legislative intent of the statute, which is as it should be. With the exception of opening the door wider to allow a change of custody as a result of a relocation, but which still does not preclude the need for a strong best interest analysis to support a change in custody.

What you are saying here does not make any sense in the context of the statute or the jurisidiction the court maintains over the child under UCCJEA



Unless a court order says otherwise, the mother is absolutely within her legal rights to move to Timbuktu if she wishes.

While it is true one legal reality is the court could order her return, another legal reality is she could shoot herself in the foot by filing a pro se custody case in CA and not being allowed to relocate, when she could have otherwise relocated. Especially where the father already lives three hours away and does not appear to have the resources or inclination to go to court to mount an aggressive fight to have the child returned.

So what she CAN do, versus what she SHOULD do, are very much different.
There will not likely be a concensus by attorneys on the proper course of action here. Some will take a conservative approach, others a more aggressive approach. And each course of action would be legally valid, although with differing degrees of risk vs reward.

If she speaks to several attorneys and they all say the same, then OP would be a fool to do otherwise. If it's split, then she will have to make her own decision.

Tex,Are you a licensed attorney? If so are you in Austin Tx (per your user name #)? Are you licensed to practice in Cali? Do you have any professional experience in Cali?

 

[CurrentlyUndone]

Tex,Are you a licensed attorney? If so are you in Austin Tx (per your user name #)? Are you licensed to practice in Cali? Do you have any professional experience in Cali?

We have someone who works for a California court who sees this every day and knows the local climate very, very well.

I know who I'd tend to trust more.

 

[stealth2]

Tex,Are you a licensed attorney? If so are you in Austin Tx (per your user name #)? Are you licensed to practice in Cali? Do you have any professional experience in Cali?

Inquiring minds want to know!

Also... is it safe to assume that you've been vetted by the powers that be here?

 

[Just Blue]

We have someone who works for a California court who sees this every day and knows the local climate very, very well.

I know who I'd tend to trust more.

Agreed. But I am curious if we have another attorney and Cali educated member.

Also curious if Admin Vetted Tex if s/he IS an attorney.

 

[Proserpina]

Agreed. But I am curious if we have another attorney and Cali educated member.

Also curious if Admin Vetted Tex if s/he IS an attorney.

In all honesty I'm not even sure Tex has even suggested that s/he is an attorney.

Then again I'm not going to wade through every post LOL

 

[stealth2]

In all honesty I'm not even sure Tex has even suggested that s/he is an attorney.

Then again I'm not going to wade through every post LOL

I do seem to remember reading something along those lines. But I could be wrong. It happens every so often.