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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38794
Experience:  I provide family and divorce law advice to my clients in my firm.
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I am the primary custodial parent but share joint legal/physical

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I am the primary custodial parent but share joint legal/physical custody of my 13 yr old son with my ex, who travels often for work and cancels or reschedules time with our son. My current husband got a job out of state,,,,,700 miles away,,,,what are my options with this?
Submitted: 3 years ago.
Category: Family Law
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your question.

How long has the current custodial order been in place? When was the last time it was modified? Has either of you ever filed for contempt against the other?
Customer: replied 3 years ago.

Custody order has been in place since at least 2007 ish? but not later than 2007. Neither party has filed contempt of court.

 

I was remarried in 2006, my current husband was a 16 year employee of a GMAC/Toyota joint venture known as NUMMI which shut down in April of 2010 leaving 5000 people unemployed.

 

I have lived in the same place since our separation in 2004, my ex has moved 3 times in the same time period.

Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your patience.

One more quick follow-up. What is the current custodial split or break-down? What is the approximate percentage of when you have the child and when he does?
Customer: replied 3 years ago.
his time share is Thursday after school thru Monday mornings.....every other week, and 3 weeks summer and half of holidays.....so approx 21% give or take? Our son has also been late to school on his time share twice this school year.
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up.

I assume that the other parent is not going to agree to you demanding or requesting custody, correct?
Customer: replied 3 years ago.
Yes,,,,I am assuming the same thing....he has never been particularly agreeable unless it is to his benefit.
Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up.

Reason I was asking all those questions is to see what type of options remain but also possibly what your reputation would be in the courts (if you or your ex are known as litigious, which does not appear to be the case).

Ultimately, since your ex does have a fairly extensive custodial arrangement, he does have all rights to contest your move. I would suggest that as a gesture of good faith (which will no doubt be misplaced), you contact your ex and ask for a formal written consent to permit you to leave the premises in exchange for possibly a different custodial arrangement that would benefit him a bit more (for example greater summer vacation and/or winter vacation custody) or in person visitation for 3 day weekends and holidays. He will most likely say no, but the proof of your offer (not the details, but the fact you made it), can later be provided to the judge for your pro-per petition as evidence of a good faith attempt to resolve it out of court, making the judge be more receptive to this petition. As for the court petition, you can request that the judge formally amend the court decree by permitting you the right to move elsewhere. It will not be done "ex-parte" as your ex will be permitted to attend the attempt to provide evidence as to why such a move would not benefit his rights.

Good luck.

Edited by Dimitry Alexander Kaplun on 2/1/2011 at 7:20 AM EST
Customer: replied 3 years ago.

Thank you for your response.... How long do you think this process would take? The divorce case is located in a county (Santa Clara) not known for its expediency and is further complicated by a DCSS case in another county (Alameda).

 

Since the Ex-Parte request is not appropiate in this situation, which forms should I use for my request to the court? An FL300 OTC with FL310, FL311 and FL341c? I have gone to extensive lengths to ensure I am approaching this situation properly. I have experience with a defensive response pro per against an attorney, where -as petitioning the court on my behalf is an unknown avenue.

 

I have already mapped out time share with his Dad that include three day weekends, extended Holiday time and summer visits that nearly mirror image the current time share to ensure that there is very little or no time lost.

 

Is there an age of majority that can be considered here and how would and or should I petition for a private audience between the judge and my son? I ask this on my sons behalf as he has asked me this question before and I had no clue how to answer him.

 

On a last note....my ex became friends with my husbands ex wife a few years ago and they collaborate against us....is there anything about this that should be considered and or is there anything that we can do about it?

Expert:  Dimitry K., Esq. replied 3 years ago.
Thank you for your follow-up. Since your response is extensive, I will go down line by line to ensure that I do not miss anything.

How long do you think this process would take?
From filing of the petition, anywhere from 2 to 6 months, with the latter being only the case if he pushes for delays and continuances. Otherwise around 3 months is about standard.

The divorce case is located in a county (Santa Clara) not known for its expediency and is further complicated by a DCSS case in another county (Alameda).
I am well aware of the locale, which is why 3 months is an average estimate.

 

Since the Ex-Parte request is not appropiate in this situation, which forms should I use for my request to the court? An FL300 OTC with FL310, FL311 and FL341c?

Correct on the forms. You can also file the FL341d and 3441e for formal custodial modification.

 

I have gone to extensive lengths to ensure I am approaching this situation properly. I have experience with a defensive response pro per against an attorney, where -as petitioning the court on my behalf is an unknown avenue.

 

I have already mapped out time share with his Dad that include three day weekends, extended Holiday time and summer visits that nearly mirror image the current time share to ensure that there is very little or no time lost.

That is great, as it should make the court's job easier and more likely to ahve order approved.

 

 

Is there an age of majority that can be considered here and how would and or should I petition for a private audience between the judge and my son?

California does not permit minors to pick the parent with whom they wish to live. While you can possibly request a hearing, the judge does not have to honor it or take it under consideration.

 

I ask this on my sons behalf as he has asked me this question before and I had no clue how to answer him.

 

On a last note....my ex became friends with my husbands ex wife a few years ago and they collaborate against us....is there anything about this that should be considered and or is there anything that we can do about it?

Sorry but no. Unless they intentionally harass, contact, or get involved beyond the scope of their existing relationships, you really cannot block or otherwise control with whom the exes choose to be in contact with.


Good luck.



Edited by Dimitry Alexander Kaplun on 2/1/2011 at 8:08 AM EST
Dimitry K., Esq., Attorney
Category: Family Law
Satisfied Customers: 38794
Experience: I provide family and divorce law advice to my clients in my firm.
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Dimitry K., Esq.
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