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It is true that in California, both parents have equal rights to the child until a court says otherwise. However, that does not mean that she has to give him 50% of the time. It means that whichever parent has actual custody and control of the child at any given time cannot be forced to turn the child over to the other parent without a court order. So, if you turned your child over to him and he chose not to return her, the only thing you could do is try to get a court order. Similarly, if you refuse to let him have your child, he would need to get a court order to obtain access to your child.
It is not a good idea to let this tug of war go on for a long period of time so it is important to get into court as soon as possible. Has a hearing been set? If not, you can set a hearing asking for a temporary order pending completion of the case. As soon as you know when your hearing is, that will help you determine how to deal with the time between now and then.
When you go to court, a primary consideration will be who has been the primary caregiver of your child recently. If you have been agreeing to his 50/50 arrangement, it is likely that the court would order 50/50 custody. If you have always been the primary custodian, it is more likely that you would be awarded primary custody. For older children, typical visitation is alternate weekends (Friday to Sunday or Monday) and a midweek visit. For a one year old, it is common to have an abbreviated version of this depending on the developmental needs of the child.
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Our recent back and forth regarding your visitation suggests that we need to have some understandings as to the best interest of our son.
Here is what I am asking for. Forget about your personal interests, your Mom’s personal interests, and put all your thoughts towards Jeremy’s best interests. Extended separation from his primary caregiver is not in his best interest. Not having a consistent feeding, sleep and bathing schedule is not in his best interest.
You know I am a good Mom, and at some level, you know what I am saying is true. You know as he develops and more time with you is in his best interest, you will have that. Research it for yourself, I know you want what is in Jeremy’s best interest. Parents and caregivers play different roles at different stages of a childs development. I am his primary caregiver. We established that pattern from birth to one year.
Here are some of my concerns since our separation:
We will be having a mediator decide the details in the near future. Between now and then, I am comfortable with giving you visitation on one day you have off from 10:00 a.m. to 5:00 p.m. If you have a second day off, I would also be ok with a few hours in the evening. You can also see him if you have an additional evening off for a few hours. This provides you frequent contact with our son. This is important to me, as everything I have read indicates that is in our son’s best interest, and that is ALL I am interested in.
We are not doing the right thing. I feel strongly about this. Jeremy is suffering because of our decisions, it is very evident. We just need to start this out on the right foot here. It ALWAYS needs to be about him, and that will evolve over time. Let’s follow proven child development and court recognized plans, not our personal desires. I really, and more importantly Jeremy really needs your help here.
Let’s both agree to put everything else aside, and focus on the best information out there for raising a well-adjusted, happy, healthy child. I am committed to that.
We were thinking on giving him the above paper, and getting him to sign it as to when he is returning the child... would that be binding if he does not want to give it back?
While it may persuade him to comply, an agreement that does not become a court order and is not signed by a judge is not legally binding. He could legally renege on the agreement with little or no repercussions. If he has consulted with an attorney, he will already know this.
Also, you should know that the mediator makes suggestions and tries to make you agree, the mediator cannot make any decisions about your child. The mediator can only help you and the father come to an agreement. You should also know that California no longer recognizes the premise that young children need their mothers. California does, however, recognize that young children need to remain with their primary caregivers.
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