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Steven  K.
Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1772
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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Being that both sides are equal, what are my chances in California

Customer Question

Being that both sides are equal, what are my chances in California of getting custody of my 3-year old daughter. I am a woman who was the stay-at-home mom primary caregiver. I stopped working when my daughter was born and now my husband does not want to pay spousal support or alimony and knows i don't have money and is trying to get full custody of our daughter. We are having a custody evaluation done. What are my chances of getting 75 or 100% custody? I really want my daughter in a stable home and have offered LIBERAL visitation with her father, I just don't feel that her going back and forth between two homes at this age is in her best interest. Maybe every other weekend for 2 days, but not the 5225 that we have now. It's been awful on her not being able to see the other parent for 5 full days at a time.
Submitted: 3 years ago.
Category: Family Law
Expert:  Steven K. replied 3 years ago.

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

In California, it is often preferred to maintain the status quo, unless there is evidence that the status quo is not working or there is some reason to change it. If you are now exercising 50/50 time with your child, there is a chance it will stay 50/50 unless you can show why it should not be. The fact that you have historically been the primary caregiver gives you an advantage in that it is common for the parent who was the primary caregiver to be awarded custody.

Steven Kincaid :

Other issues would include domestic violence or substance abuse, or any other issues that tend to prove that a certain arrangement would be in the child's best interests.

Steven Kincaid :

With an older child, school performance is often considered. For a younger child like yours, the argument may be more developmental - the court will consider what a child of three needs for developmental stability.

Customer:

The status quo was that she was with me all the time while her father was barely around. Now he's trying to claim that he was the primary care-giver- HA! What a joke. Since the judge has ordered a temporary 50/50 week on, week off (yeah...for a 3-year old, how stupid can the system be?) that has been the status quo for 2 months. FInally, we're on the 5225 arrangement which will be the status quo once it goes back to court. It's a horrible arrangement for a 3-year old going back and forth, back and forth...absolutely ridiculous, and my child's behavior and personality is changing because of it. I'm trying to do the right thing in offering to let her father see her as much as possible....he, on the other hand, has stated he wants her see me as LEAST as possible. He's a piece of garbage. He wouldn't even come trick-or-treating tonight or attend her preschool function. I hope the custody evaluator takes those things into consideration.

Steven Kincaid :

One factor the court is to consider is which parent is more likely to encourage a relationship between the children and the other party. Therefore, this gives you an advantage in the proceeding.

Steven Kincaid :

Does he give any reason for wanting to limit your visitation (other than his claim that he was the primary caregiver)?

Customer:

Yes, he has filed completely bogus allegations that I am a drug user, abuser, and blah, blah, blah...whatever else he could think of to try to take our child away and move to NY to be with his family and not have to pay spousal support. He went to some psychologist and talked to her twice, told her a bunch of lies, and she called children's services. They came out, saw that nothing was wrong, are getting ready to close the claim. He has a completely warped sense of how children should be raised because of the way his screwed up family raised him.

Steven Kincaid :

how so?

Customer:

I've been a stay-at-home mom involved in Moms' groups, play dates, recreational activites at local community centers, and everything else you can think of to socialize a child. I took her to the park every day since she was 5 months old.

Customer:

Oh, they believe in sticking your kid into daycare at 2.5 even when the mom doesn't work...which is exactly what his mother did.

Steven Kincaid :

His insistence on making false allegations against you could be held against him by the custody evaluator. Did you tell the evaluator about the ways you were involved with your child?

Steven Kincaid :

I had one case where a father claimed to be the child's primary caregiver and as we walked out of the courtroom, filling out the child custody evaluator application, he asked the mother to give him the names of all the child's doctors so he could put it on the form. He had no idea where the child got medical care. It sounds like you are in a situation like that.

Customer:

They sent their kids away to summer sleep-away camp at age 7 for 6-8 weeks every year...the "get rid of your kids" type of parenting. Because I want to actually spend time with my child, even now she is only in preschool 2 days a week...that's all she needs because I socialize her.

Customer:

Yes, I told the custody evaluator and she has letters from friends and people who have seen me with my daughter on a regular basis.

Steven Kincaid :

That's great. From the information you are giving me it sounds like you have a good chance, but remember, I have no idea what information or evidence he may be giving her that you do not yet know about. He may have his friends writing up the same things.

Customer:

He knows the doctors and has gone to the doctor with us a few times...but he doesn't know her friends parents or even how to comb her hair or have her wear the right size clothes. Awful.

Steven Kincaid :

That kind of thing usually comes across in these evaluations.

Customer:

Nope. I already saw what he has given her (he has no friends to collaborate anything about his caretaking abilities) it's all court documents and the only letters he has are from his mom, dad, & sister saying what a bad mom I am. They all look really contrived too.

Steven Kincaid :

My experience in California is that most evaluations are well done. Not true in all states. but in California, it's been better. May I ask what county you are in?

Customer:

Los Angeles.

Steven Kincaid :

That is where I've practiced primarily. Central District?

Customer:

I think so... 111 N, Hill st.??? That's why this evaluation is taking 3 months & my daughter has to suffer, cuz of the wait.

Steven Kincaid :

Yes, that's Central District. I do not know the judges there too well - I've worked in an outlying court so I only know the judges that have been in more than one court.

Steven Kincaid :

I've done a few cases there, though.

Customer:

Temp. Judge was Trent Lewis and current judge is Hewitt...Robert, I think?

Steven Kincaid :

Nope, don't know them. Who is the child custody evaluator?

Customer:

Susan Ralston

Steven Kincaid :

Sorry, I do not know her. Is she private or is she employed by the Court?

Customer:

I think both. My husband is paying her close to 20 grand to do this.

Customer:

It's ridiculous.

Customer:

What do you think of a vocational evaluation as well?

Customer:

One attorney told me not to do it. The other attorney told me to do it or else I'd have to sign a waiver that she's not taking responsibiliy for me if I sign it. I didn't think that was right since she is supposed to back me up and be on my side.

Steven Kincaid :

A vocational evaluation could help prove that you do not have much earning power. Is this the reason you would want to do one?

Steven Kincaid :

Of course, it could always prove that you have more earning power than you think you do in reality.

Customer:

No, HE wants me to do one. I am an elementary school teacher but there are no jobs in LA right now.

Customer:

It's so he doesn't have to pay me spousal or child support. He's a real winner.

Steven Kincaid :

Well, if you can get a vocational expert to say there is a hiring freeze now and you therefore have no earning capacity (or at least not as a teacher), then it would be beneficial to you.

Customer:

I'm afraid they'll tell me that I am qualified to work at McDonald's and get moving on that application! I don't NOT want to work, I'm not lazy, but I want to be there for my daughter. He wants to put her into daycare full-time, both of us working, and my never seeing her.

Customer:

I have first right of refusal...a motivation for him also to have me work. He already broke it once by hiring a babysitter for a week!

Steven Kincaid :

In California, a judge may impute income to you if you are not working but doesn't have to. It is common to impute minimum wage, with or without a vocational expert.

Steven Kincaid :

You can always make the argument that it would not be cost effective due to the cost of child care. Also, this would just lower your support, you would not actually have to work at McDonald's.

Steven Kincaid :

Is there any other information I can provide for you?

Customer:

No thank you! Thanks for your time.

Steven K., Family Law Attorney
Category: Family Law
Satisfied Customers: 1772
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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Steven  K.
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I have practiced family law since 1996, focusing on child custody and domestic violence