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#225840 - 09/29/09 04:54 PM
Move away case
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Member
Registered: 09/28/09
Posts: 24
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In a move away case, is it the custodial parent's legal burden to prove to the court that the move is necessary for the children or is it the non-custodial parent's legal burden to prove that the move is harmful for the children's best interest?
Which would weigh more than the other in getting the children to move away with the custodial parent?
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#225862 - 09/30/09 01:15 AM
Re: Move away case
[Re: IndyTex]
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Member
Registered: 09/28/09
Posts: 24
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I am the CP and primary caretaker for my children for the last several years of their lives and I am seeking permission to take my children. We already have an exisiting custody order but due to the exparte hearing, the judge asked for mediation. The mediator made a very unprofessional and biased report so out of that, there is a temporary order for the children to be with the father and I am seeking permission to take my children. The NCP has child support arrears and has no verifiable income, claiming that he is self employed.
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#225893 - 09/30/09 11:09 AM
Re: Move away case
[Re: astrolink]
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Member
Registered: 09/28/09
Posts: 24
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Yes but due to the anonymous nature of this forum, I can not disclose much. I did not understand that child support had nothing to do with custody. Isn't it breaking the law if you don't pay child support? How can authorities give children to a person who can barely provide the most basic fundamental things for his children?
Edited by nnn3 (09/30/09 11:10 AM)
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#225901 - 09/30/09 11:56 AM
Re: Move away case
[Re: emilyrae]
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Member
Registered: 09/28/09
Posts: 24
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You cannot deny visitation based on unpaid child support, nor can you stop paying child support if you aren't receiving visitation.
They are two seperate issues.
We can't tell you why the court would give your children to your ex without any information. In that case, I know what went wrong. Is there any chance to overturn this "temporary" order? I have a settlement conference and trial coming up. I wonder if there is still a chance to regain my custodial parenting and maintain primary provider. What I find most appalling is that the court is all about the "best interest of the children" but my teenage daughter's statement to be with me was ignored. Wouldn't that mean my daughter's right to her best interest is violated? If he can't provide for them, how would this be in the "best interest of the children"? All of this is ignored. It's very frustrating!
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#225903 - 09/30/09 12:18 PM
Re: Move away case
[Re: nnn3]
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Member
Registered: 09/28/09
Posts: 24
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You cannot deny visitation based on unpaid child support, nor can you stop paying child support if you aren't receiving visitation.
They are two seperate issues.
We can't tell you why the court would give your children to your ex without any information. In that case, I know what went wrong. Is there any chance to overturn this "temporary" order? I have a settlement conference and trial coming up. I wonder if there is still a chance to regain my custodial parenting and maintain primary provider. What I find most appalling is that the court is all about the "best interest of the children" but my teenage daughter's statement to be with me was ignored. Wouldn't that mean my daughter's right to her best interest is violated? If he can't provide for them, how would this be in the "best interest of the children"? All of this is ignored. It's very frustrating! 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. andCalifornia Family Code Section 3011 states,3011.In making a determination of the best interest of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant, consider all of the following: (a) The health, safety, and welfare of the child.
Edited by nnn3 (09/30/09 12:18 PM)
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#225906 - 09/30/09 12:27 PM
Re: Move away case
[Re: nnn3]
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Enthusiast
Registered: 07/20/09
Posts: 417
Loc: Pasadena, MD
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I never argued with you about WHY your ex had your children. I said that you can't expect the readers on this site to answer confidently why they think a judge ordered them to his custody, without having any information.
Apparently the judge felt the heath, welfare and safety of your children wasn't an issue at your ex's home. And for whatever reason they took them from your custody, maybe that was more of an issue. (Whether it be based on mediators incorrect reccomendation as you stated)
As far as your daughter deciding she wanted to live with you, it says right there in the code you quoted, the court shall give due weight to the wishes of the child. A child doesn't always know what's in their best interest, so just because your daughter said she wanted to live with you, isn't reason for the court to place her in your home.
Whether or not you want to devulge the info to the rest of the board, there was a reason, in the courts eyes for removing your children from your home. Courts don't usually do this unless there is a significant change in circumstances. Unless we know the ins and outs of the case, we can't give you an idea of why the judge might have done this.
All I was saying is that custody and child support are two separate issues. One cannot deny visitation due to lack of support. I didn't say that the judge made a good decision putting your children with your ex even if he "can't provide" for them. I answered why you can't deny visitation on unpaid child support.
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#225908 - 09/30/09 12:36 PM
Re: Move away case
[Re: emilyrae]
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Member
Registered: 09/28/09
Posts: 24
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Law is not always logic. One would think not paying child support is breaking the law so why would the court give custody to someone who has no money to raise their children. Unbeknownst to me, I made the mistake of mixing the two: support and custody together. Who would've known unless being at the mercy of the court? So now I know. I thought if he had no means to raise them, why would the court give the children to him? So it was an honest mistake in the game of "law". I felt that he should not get visitation unless he pays up the arrears while I move away with the children.
The mediation report is a whole other story. Talk about character assassination! LOL...She burned me to death in her report. Censored me, omit my defenses, totally biased! And so during the hearing, out of frustration, the judge hands over my kids to him for a temporary order and if I'm not happy, go to trial.
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#225910 - 09/30/09 12:41 PM
Re: Move away case
[Re: nnn3]
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Member
Registered: 09/28/09
Posts: 24
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Plus, just to add that me moving was not whatsoever in bad faith. I'm getting married out of state. The children's father and I were never married to begin with thus I left him because he refused to legitimize our relationship after our girls were born.
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#225913 - 09/30/09 01:48 PM
Re: Move away case
[Re: nnn3]
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Superstar
Registered: 06/03/03
Posts: 5742
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Plus, just to add that me moving was not whatsoever in bad faith. I'm getting married out of state. The children's father and I were never married to begin with thus I left him because he refused to legitimize our relationship after our girls were born. Here's a few things. Attempting to move children out of state because of a new marriage is probably the most denied reason there is. There has to be compelling evidence on how it helps the children. Even then, court allowed moveaways are very uncommon. Reading between the lines, it appears you repeatedly denied parenting time because he wasn't paying support. Perhaps you left with the kids for a significant time out of state to your fiance. Whatever it may be, as you've learned, they are separate issues and you can and will lose custody if you deny parenting time. How well you can financially provide for your children has nothing to do with custody. For example, studies show that 98% of stay at home parents become the primary parent, and they are earning $0. Once he has custody, you will eventually be ordered to pay him support. And, govt. assistance is based on being the primary parent. If he has little or no income, he can get welfare cash, medical assistance, the EIC, food stamps, etc. From reading your posts, I understand why custody was changed. You have done wrong by family law, but you justified your actions here, just as you probably did to those that determined the change. If you want to have any chance of custody, you need to study long and hard the family law statutes so you understand them, and hire an attorney to explain how the system works. You used a key word in one of your posts: logic. Throw it out the window. Logic does not apply in most of family law.
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#225925 - 09/30/09 03:09 PM
Re: Move away case
[Re: astrolink]
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Member
Registered: 09/28/09
Posts: 24
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I have never took my children and left the state with my kids nor have I ever denied him visitations ever since he filed for custody. He always had joint legal custody and visitation rights with minimum financial support.
I don't understand if the welfare of the children is in their best interest, how would a parent with $0 income be given custody. In my case, we've already established it years ago and there just needs to be a change. Then in that case, does it mean I can move away without establishing a job in the new residence and if I give him more percentage of visitation rights, then I'm all good??
So frustrating! This system is not fair! I've raised my girls and provided everything for them for the last decade. Not once in their life has their father ever taken them to the dentist or doctor. He never has health/dental insurance. He expects me to get by with $500 a month and he does not even pay consistently. He has two other mouths to feed from another relationship. Just because I'm moving on with my life, the intimacy of my relationship with my daughters get chopped up by the system. California is in a poor economy state, my job is getting furlough, my rent went up, and I don't even get help from him raising my girls. I move on to survive. I'm barely making it and my kids get taken away just cause I'm trying to better my life. I figure by marrying having 2 income is better than one and cost of living where I'm going to is cheaper. Besides, my girls and I, we have very close mother and daughter bonding.
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#225944 - 09/30/09 04:20 PM
Re: Move away case
[Re: astrolink]
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Member
Registered: 09/28/09
Posts: 24
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How hypocritical is this! Then why would the court frown upon me that I have yet to get employment in my new residency?
LOL omg. This is how he did a knock out on me in mediation: bad mouthed me and the mediator took his word for it and censored my defense. Then she finalized and closed the mediations session.
I'll tell you why I don't have custody now, cause law is not logic. LOL
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#225946 - 09/30/09 04:51 PM
Re: Move away case
[Re: nnn3]
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Superstar
Registered: 06/03/03
Posts: 5742
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Do you have an attorney? If you want any further information, you would have to give detailed information of exactly how things have come to be as they are.
Moving children is dependent on many factors. One is a detailed plan of employment elsewhere (usually), detailed information on the neighborhood (crime rates, etc.), quality of education, how the children will maintain the same amount of contact with the other parent and relatives, etc. Without these in place, there is no chance of a change. And, as touched on before, if the only reason you gave for the move was to live with a new husband in another state, that would be about 2 strikes in itself. The court would look at that as being only in your best interest, and not in the best interest of anyone else.
Even with everything in place, the courts still rule far more than a majority of the time to keep the children in the jurisdiction they live in. With the "best interest of the child doctrine," they want to leave them in their current school and with friends and family.
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#225984 - 10/01/09 10:17 AM
Re: Move away case
[Re: astrolink]
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Member
Registered: 09/28/09
Posts: 24
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I am seeking an attorney.
Since my research on the net, yes I have read about the LaMusga case. I also read about the Burgess case. The Burgess case indicated that as long as the custodial parent's motive to move was not in bad faith, then it was allowed for the custodial parent to move. Of course, the LaMusga case occured after the Burgess case. In comparison, the rulings of both cases are very inconsistent and unfair because of the broad and undefined law that is at the mercy and interpretation of authorities and judges.
BTW, what is the meaning of a temporary custody? Does it mean everything in regards to our case is up in the air until it is finalized and adopted as a court order in the trial? I do have a fair chance, do I?
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#225999 - 10/01/09 11:46 AM
Re: Move away case
[Re: emilyrae]
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Member
Registered: 07/23/08
Posts: 84
Loc: California
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Not knowing why temporary custody was given to ex it's hard to say. However, depending on the reason, I wouldn't discount the fact that ex may get custody especially with you trying to move away. I think you need to be very careful.
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#226005 - 10/01/09 12:50 PM
Re: Move away case
[Re: emilyrae]
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Member
Registered: 09/28/09
Posts: 24
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It was based on the mediation report painting a really ugly picture of me as a scorned and evil mother who was taking her children away from their father. It's easier on her job to assess the situation if someone had to be the "bad guy". The mediator made the report and then the judge just gave temporary custody to him. She made a lot of false assumptions and accused me of a lot of things such as I would take the kids away and never let him see them. It's automatic loss to me cause it's her words against mines. There's no recorder or witness to the mediation session. As I was saying earlier, I made the mistake of mixing the two up: child support and custody. He does not help me raise the kids! That makes me very angry how the system does not look at his abilities to be a parent. I figure if he can't even help me with that, then I should be able to take my kids with me. In a sensible world, wouldn't that make sense though? I'm not an evil person. I don't do drugs, I don't have records with law enforcement or CPS. Plus, my girls and I are very bonded.
There are people in certain positions that can abuse their power and discretion, turning other's life upside down. This we have to be aware of. I can't say enough of this. It's not because I'm an awful mother. This would be something obvious that people would assume if another lost custody of their children.
Innocent people who never been through the legal system to this degree would never know or understand but now I understand how the game is played.
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#226011 - 10/01/09 01:07 PM
Re: Move away case
[Re: nnn3]
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Member
Registered: 09/28/09
Posts: 24
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If I could do that mediation over, non of this would happen because I know now what to say to pacify the system. It's just a game.
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#226023 - 10/01/09 06:04 PM
Re: Move away case
[Re: nnn3]
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Member
Registered: 09/28/09
Posts: 24
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To those who are looking for help that are in a situation as mines:
"In the 2004 case of Marriage of LaMusga, the California Supreme Court laid out 8 primary factors that a court should consider when deciding whether to modify a custody order in light of the custodial parent’s proposal to change the residence of the child. These factors are as follows:
* The children’s instability and continuity in the custodial arrangement;
* The distance of the move;
* The age of the children;
* The children’s relationship with both parents;
* The relationship between the parents, including but not limited to, their ability to communicate and cooperate effectively and their willingness to put the interests of the children above their individual interests;
* The wishes of the children if they are mature enough for such an inquiry to be made;
* Reasons for the proposed move;
* The extent to which the parents currently are sharing custody."
Edited by community_mod (10/01/09 06:32 PM)
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#226036 - 10/01/09 09:22 PM
Re: Move away case
[Re: IndyTex]
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Member
Registered: 09/28/09
Posts: 24
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Did I miss this earlier....how old are your children? Are they over 12> My children one is ten years old and the other two are over 12. The oldest is old enough to drive.
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#226038 - 10/01/09 09:36 PM
Re: Move away case
[Re: astrolink]
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Member
Registered: 09/28/09
Posts: 24
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I'm just focusing this part of your post..it reeks of anger....you sound like you can't stand the other parent....and would have difficulty co-parenting. Most people hire an attorney for these things, and they coach you what to say and not say. Obviously, you didn't say the right things (or said many "wrong" things). Judges stay with the status quo, as in the kids stay with the custodial parent during these kinds of hearings, in nearly 98% of all cases. You really have to mess it up to get a report so bad that custody is given to the other parent on a temporary basis.
As I was saying before how unjust it is that it's the mediators words against me. Even an attorney who read the report (I didn't hire her) said based on the tone of her report she cleartly didn't like me at all for some reason. As a matter of fact, it's an coincident that one of my girlfriend had a mediation with her years ago, had filed a complaint against this mediator, got a new mediation with a new mediator, and my g.f. won her case. See how corrupted this is? A lot of the information was not professional. She had a lot of personal opinion of me in the report. I went in there, thinking I shouldn't say too much because I might just shoot myself in the foot if I talk too much. Of course I was angry but I kept it all inside of me. I showed no emotions, and my friend said because I might have been too cold, I didn't cry my eye balls out that's why I didn't get my favor. What no one would know since it was just me and the dad and the mediator, is that she allowed him to talk 80% of the time and every time I tried to speak, she'd shut me up. I figure I better behave or else but even that did not help me cause I did not get to say much. What gives?
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#226065 - 10/02/09 09:22 AM
Re: Move away case
[Re: Tali_Llama]
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Member
Registered: 09/28/09
Posts: 24
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Also, something you should know is that the LaMusga v Navarro case was being reviewed by the CA Supreme Court - our wonderful former Governor Gray Davis (Aka the "Lord of Darkness" for our wonderful California rolling blackouts) passed a bill that reverted California back to the Burgess system - where the burden of proof falls onto the non-custodial parent to show that the move will be harmful to the children.
Essentially, the courts are taking a balancing point on the issue - is the custodial parent offering to give the non-custodial parent some form of visitation? Are travel costs an issue? These are the kinds of things that have to be brought up during the removal hearing. Thanks for the pointers. 
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#226066 - 10/02/09 09:27 AM
Re: Move away case
[Re: nnn3]
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Member
Registered: 09/28/09
Posts: 24
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Tali_Llama, do you know the name of that bill? I want to read up on it.
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#226077 - 10/02/09 10:53 AM
Re: Move away case
[Re: astrolink]
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Member
Registered: 09/28/09
Posts: 24
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I think you are focusing on the wrong thing. You have to have custody back to even attempt a legal move with the children. I've read thousands of cases, and have not read one where a non-custodial parent was able to move away with the kids. I doubt its even been attempted, and no attorney would take such a case. There's no chance of winning. Me a decade year custodial parent veteran vs. a irresponsible one month custodial father? No way. Yes I did lose but a temporary lose due to technical things. But thanks for the negativity. It helps me think better.
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#226083 - 10/02/09 12:06 PM
Re: Move away case
[Re: astrolink]
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Member
Registered: 09/28/09
Posts: 24
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I'm just trying to point out you are the non-custodial parent at this point. The 10 years means nothing when it comes to moving away. At this point, you can't even make an attempt. Statistically, temporary custody orders become permanent 90% of the time. You've got to get custody back or the rest is moot.
You really need an attorney. No one here can deal with the individuality of your case. If what you say is so true, then Mr. Lamusga would've never won. I never expect any of you to deal with my situation but in the nature of a forum, you can either ignore my post or involve yourself. Everything said in here whether good or bad, I appreciate it.
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#226098 - 10/02/09 02:11 PM
Re: Move away case
[Re: astrolink]
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Member
Registered: 09/28/09
Posts: 24
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Your circumstances are very different. The father isn't trying to move. You haven't posted that he is denying you time with the kids. I don't think the case fits your circumstances.
Regardless, good luck. Keep us posted with what your attorney recommends. Their advice can vary greatly from state to state, county to county, and even judge to judge. I know I didn't post it but just because I didn't post it does not mean that he did or did not.
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#226119 - 10/03/09 05:24 AM
Re: Move away case
[Re: astrolink]
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Superstar
Registered: 06/17/03
Posts: 6740
Loc: S. California
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I'm not interested in playing games. Good luck  (For those of you new to the site.. I am giving Astro a little good-hearted teasing..)
-------------------------
Nnn3 - What Astro is trying to tactfully point out, without an accusing finger, is that it is EXTREMELY rare for the courts to remove custody from a biological mother of - (I believe you said you were the custodial parent for 10 years?) .. and hand the custody over to the father.
This kind of change usually only happens with some extreme circumstances, such as when a mother is an addict, an abuser or has severe hostility issues towards the father that is psychologically impacting the child(ren). (I thought it was most polite that Astro went with the least bad of the three for his example..)
Now, you've come on to discuss "move-away" options, which Astro has pointed out are separate issues. Move-away discussions on this site are typically for the custodial parent moving away. Any reader with even just a little intuition has probably deduced that you might even be considering just moving away with the children - something I think I would be considering if I felt that I had been "wronged" by the courts.
Astro's point is that, while its nice you've come to a free website to listen to a bunch of amatuers voice our opinions - that elements of your case, particularly the mediator mismanagement, are more complex and that you need to rely on the advice of paid attorneys - and maybe even get a second opinion, instead of using the internet for incomplete input on your case based on the limited information we have.
Meaning - ya get what ya pay for. The internet is a nice place for a little free research and debate/discussion, but paid professional advice is by far the better way to go.
_________________________
Disclaimer:Not actual legal advice!
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#226141 - 10/03/09 04:50 PM
Re: Move away case
[Re: Tali_Llama]
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Member
Registered: 09/28/09
Posts: 24
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Nnn3 - What Astro is trying to tactfully point out, without an accusing finger, is that it is EXTREMELY rare for the courts to remove custody from a biological mother of - (I believe you said you were the custodial parent for 10 years?) .. and hand the custody over to the father.
This kind of change usually only happens with some extreme circumstances, such as when a mother is an addict, an abuser or has severe hostility issues towards the father that is psychologically impacting the child(ren). (I thought it was most polite that Astro went with the least bad of the three for his example..)
Now, you've come on to discuss "move-away" options, which Astro has pointed out are separate issues. Move-away discussions on this site are typically for the custodial parent moving away. Any reader with even just a little intuition has probably deduced that you might even be considering just moving away with the children - something I think I would be considering if I felt that I had been "wronged" by the courts.
Astro's point is that, while its nice you've come to a free website to listen to a bunch of amatuers voice our opinions - that elements of your case, particularly the mediator mismanagement, are more complex and that you need to rely on the advice of paid attorneys - and maybe even get a second opinion, instead of using the internet for incomplete input on your case based on the limited information we have.
Meaning - ya get what ya pay for. The internet is a nice place for a little free research and debate/discussion, but paid professional advice is by far the better way to go.
I stumbled upon this forum as I was doing my own homework for my situation. Hopefully, there is someone out there who is in a situation like mines. Networking, getting ideas and pointers was all I expected out of a forum. So far a lot of the things in here no matter how big or small helped me look at my strength and weaknesses, where I went wrong, and what I'm lacking, I'm going to build on it. Yes I am going to hire an attorney.
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