What constitutes significant change in circumstance?

[ProPerDoper]

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

As father of my two children I have majority timeshare (68%) as ordered by the court. (Ages 12 and 15)

Mom has decided to move several hundred miles away, and says we will need new timeshare arrangement. It appears as though she will file to modify custody, requesting the kids be allowed to live with her majority of time.

We have a history of extensive litigation (full custody, business, vocational, evaluations, etc.) She will undoubtedly request a full custody evaluation once again, as the last was in 2001.

Question: Does her moving constitute a significant change in circumstance as required for a motion and request for custody?

 

[Ohiogal]

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

As father of my two children I have majority timeshare (68%) as ordered by the court. (Ages 12 and 15)

Mom has decided to move several hundred miles away, and says we will need new timeshare arrangement. It appears as though she will file to modify custody, requesting the kids be allowed to live with her majority of time.

We have a history of extensive litigation (full custody, business, vocational, evaluations, etc.) She will undoubtedly request a full custody evaluation once again, as the last was in 2001.

Question: Does her moving constitute a significant change in circumstance as required for a motion and request for custody?

HER moving is not a substantial change in circumstance for the children. It will require a long distance parenting plan but if that is all she has then she will not win custody.

 

[ProPerDoper]

Follow up..if I may

Thanks for your quick response.

California has no age of majority, but will give weight to the desires of the children if a custody evaluator interviews them.

My objective is to keep the evaluation from occurring, and I'll argue no substantial change for the children caused by her move. (Thanks) Any additional info to add substance to this position would be appreciated.

In past hearings where Mom attempted to change custody, the court's mediator testified that the children should not be allowed to decide where they want to live. Do you have any perspective on how much weight California gives to the decision if one of the kids states their preference on where to live?

 

[LdiJ]

Thanks for your quick response.

California has no age of majority, but will give weight to the desires of the children if a custody evaluator interviews them.

My objective is to keep the evaluation from occurring, and I'll argue no substantial change for the children caused by her move. (Thanks) Any additional info to add substance to this position would be appreciated.

In past hearings where Mom attempted to change custody, the court's mediator testified that the children should not be allowed to decide where they want to live. Do you have any perspective on how much weight California gives to the decision if one of the kids states their preference on where to live?

Are you stating that one or more of the children wants to live with/move with mom and therefore that is why you don't want an evaluation to happen? Sometimes a judge will consider a child's wishes to change custody as a change in circumstance.

However, the odds are definitely not in mom's favor. I have yet to see a case (at least one that did not involve parental unfitness issues) where an ncp got to both change custody AND move with the kids.

 

[CourtClerk]

Thanks for your quick response.

California has no age of majority,

I have no idea who told you that, but the AOM in CA is 18.

but will give weight to the desires of the children if a custody evaluator interviews them.

They'll give weight to them even if a custody evaluator doesn't interview them. A CASA could be assigned, minor's counsel, and a few other options.

My objective is to keep the evaluation from occurring, and I'll argue no substantial change for the children caused by her move. (Thanks) Any additional info to add substance to this position would be appreciated.

The change will be that she's moving and she would like a set visitation scheduled since you two don't play nice in the sandbox, it can't be left up to the two of you to decide. Why don't you want your child(ren) speaking to an evaluator? What's going on over there that you don't want said?

In past hearings where Mom attempted to change custody, the court's mediator testified that the children should not be allowed to decide where they want to live. Do you have any perspective on how much weight California gives to the decision if one of the kids states their preference on where to live?

From the CA family code:

If a child is of sufficient age and capacity to reason so
as to form an intelligent preference as to custody, the court shall
consider and give due weight to the wishes of the child in making an
order granting or modifying custody.

 

[Ohiogal]

Like I said, if HER moving is ALL she has then that is not a substantial change of circumstance for the children. However the children's wishes mixed with other things CAN BE a substantial change of circumstance. (Emphasis added this time).

So I concur with the others -- what are you so afraid of being found out.

His thread history:
https://forum.freeadvice.com/search.php?searchid=2384126

 

[wileybunch]

A "child" isn't REALLY old enough to know who they want to live with for "all the right reasons" and I think it stinks to put the child in that situation. So I would be trying to shut it down, too. Parents can SO EASILY manipulate a child to woo them away from another parent if that is their intention. So as a CP, THAT is reason enough not to want the children to be interviewed to see what they "want". The kids at that age are smart enough to know how they can manipulate a situation, as well, to have what the other parent has dangled in front of them.

 

[Ohiogal]

A "child" isn't REALLY old enough to know who they want to live with for "all the right reasons" and I think it stinks to put the child in that situation. So I would be trying to shut it down, too. Parents can SO EASILY manipulate a child to woo them away from another parent if that is their intention. So as a CP, THAT is reason enough not to want the children to be interviewed to see what they "want". The kids at that age are smart enough to know how they can manipulate a situation, as well, to have what the other parent has dangled in front of them.

Here is the thing -- to have a custody evaluator or CASA involved is NOT a bad thing. The good ones can figure it out and know who is playing games. It gives the children a voice. To run from that participation is a bad idea.

 

[abys32]

A "child" isn't REALLY old enough to know who they want to live with for "all the right reasons" and I think it stinks to put the child in that situation. So I would be trying to shut it down, too. Parents can SO EASILY manipulate a child to woo them away from another parent if that is their intention. So as a CP, THAT is reason enough not to want the children to be interviewed to see what they "want". The kids at that age are smart enough to know how they can manipulate a situation, as well, to have what the other parent has dangled in front of them.

I agree with this. Maybe dad is "afraid" that the kids will say that they want to move with mom. Totally legitimate fear and therefore definitely a good situation to consult an attorney. Hopefully, they love both parents. Sometimes kids feel more protective over vulnerable mom. What has she said? Does she cry in front of them? There is no way to know. So many irrelevant reasons for kids to make a certain decision for which they do not understand the consequences. Also, you must discipline kids to raise them properly. Don't be afraid of a teen with an attitude because you don't let them do whatever they want. It doesn't mean they don't love you.

On the other hand, the best advice you can get from here is to just lay it all out. They can't adress what they don't know. Is there something specific you are afraid the kids might say to the evaluator?

 

[abys32]

Here is the thing -- to have a custody evaluator or CASA involved is NOT a bad thing. The good ones can figure it out and know who is playing games. It gives the children a voice. To run from that participation is a bad idea.

Can you explain and contrast to Wileybunch's point?

 

[CourtClerk]

A "child" isn't REALLY old enough to know who they want to live with for "all the right reasons" and I think it stinks to put the child in that situation. So I would be trying to shut it down, too. Parents can SO EASILY manipulate a child to woo them away from another parent if that is their intention. So as a CP, THAT is reason enough not to want the children to be interviewed to see what they "want". The kids at that age are smart enough to know how they can manipulate a situation, as well, to have what the other parent has dangled in front of them.

I'm sorry, but I haven't seen a judge yet that wouldn't throw the bull**** flag on a child if they THOUGHT for a second they were being played. We must remember, this isn't TX (and even TX has gotten rid of this), the child's opinion is given due weight. They don't EVER make the final determination.

 

[CourtClerk]

I agree with this. Maybe dad is "afraid" that the kids will say that they want to move with mom. Totally legitimate fear and therefore definitely a good situation to consult an attorney. Hopefully, they love both parents. Sometimes kids feel more protective over vulnerable mom. What has she said? Does she cry in front of them? There is no way to know. So many irrelevant reasons for kids to make a certain decision for which they do not understand the consequences. Also, you must discipline kids to raise them properly. Don't be afraid of a teen with an attitude because you don't let them do whatever they want. It doesn't mean they don't love you.

On the other hand, the best advice you can get from here is to just lay it all out. They can't adress what they don't know. Is there something specific you are afraid the kids might say to the evaluator?

I'm truly trying to figure out what your purpose is.... seriously.

 

[abys32]

I'm truly trying to figure out what your purpose is.... seriously.

Please explain.

 

[abys32]

I'm sorry, but I haven't seen a judge yet that wouldn't throw the bull**** flag on a child if they THOUGHT for a second they were being played. We must remember, this isn't TX (and even TX has gotten rid of this), the child's opinion is given due weight. They don't EVER make the final determination.

I'm not sure what you're saying here. Are you saying that , in your experience, the judge can tell if the child is manipulating them?

 

[ProPerDoper]

Here's what Dad fears:

Many of you have asked why I don't want an evaluation. What is it I fear?

I fear the process. I went through eight years of absolute hell in the divorce. Twenty two volumes, every evaluation you can imagine, and finally had to complete the process in Pro Per just to hold on to a home to be able to care for the kids.

I know...I know... I must have had something to do with the battle. It takes two, maybe I was also unreasonable, etc. Mom wouldn't settle...period. If she had, and avoided trial, she would have come out much better in the process. Instead, she ended up funding 10 separate attorneys, and is still litigating with Family Law attorney #4, as he filed for breach of warranty when she refused to pay the remaining $78k that she owed him. He filed in 2003, and he just filed an appeal of the last order from binding arbitration.

The kids are being manipulated in a big way. Yes she cries in front of them, and whines about how lonely she is, makes life Disneyland for them, has few boundries/rules, and focuses on being best friend vs. parent. Mom also called CPS on me alledging neglect. CPS opened the case, then quickly closed it again upon learning the facts, and stated that mom was extremely manipulative in calling them in an attempt to force a shift in custody. At trial, (she filed for custody in conjunction with the CPS effort) the court appointed mediator was called to testify under emergency request by the judge, and he stated on the record that mom was very manipulative and that the children should not be allowed to choose. Three attempts to shift custody previously were also denied.

So what do I fear? Going back into emotional hell for a year plus, and being subject to having to defend against harsh lies and allegations. Add to that fact that mom has our 15 year old daughter thinking that she wants to go live with mom, (lots of freedom, perks, a new car coming soon, etc.) and the prospect of certain emotional pain and tug-of-war feeling that all in the family are sure to experience causes me great concern.

Finally, below is a response that I just received from my unbundled services provider: (Attorney with advice for fee)

Is her move a significant change in circumstance that will warrant a motion and request for custody shift to her?

Depends.

A

Assuming the present order is a “final” judicial custody determination (or stated as “permanent” in a stipulated order), mom has to show there is now such a significant change of circumstances so affecting the children that modification IS ESSENTIAL to the children’s welfare. That she has to drive for a longer time may not be enough of a significant change of circumstances. The idea is the children now have set routines and those set routines should not be modified unless the change is essential to their welfare.

B

If the present order is not a “final” or permanent, then best interest applies.

See Monte***** v. Dias 26 Cal 4th 249, 256. Also LaMusga sand Burgess.