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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12236
Experience:  Attorney experienced in all aspects of family law
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How can I get joint physical custody back after visitation

Resolved Question:

How can I get joint physical custody back after visitation?
Submitted: 1 year ago.
Category: Family Law
Expert:  Brandon M. replied 1 year ago.

Brandon M. :

Hello there.

Brandon M. :

Hi, are you able to see this and respond?

Customer:

yes

Brandon M. :

Great. Thank you for your question.

Brandon M. :

What is the visitation schedule like now?

Customer:

I have them every weekend. Recently the court mediator recommended that I get every other weekend because my daughter is going to Junior high and they want her to stay in the town where she goes to school and bond with friends her age. i live 1.5 hours away near my job.

Brandon M. :

When was the last time that the visitation/custody order was modified?

Customer:

I am in escrow to buy a house back in the county where my kids. They want me to sign a new stipulation in the next couple weeks. will that stop me from making changes a month after that. It has been about 3-4 years.

Brandon M. :

Well, child custody can be changed at any time there is a material change in circumstances, and children getting older is a material change in circumstances because their developmental needs change as they get older. So where a custody/visitation order has not been modified for 3-4 years, it is normally eligible for modification based just on the fact that so much time has passed. That said, if you want to go to a 50/50 schedule, now is probably not the right time to sign a new stipulation for something else. If you signed a new stipulation and asked for a change a month later, the court's question (rightfully) would probably be "you just signed this stipulation a month ago... if this was in the kids' best interests a month ago, why wouldn't it be now?" It's not that you wouldn't have an answer to that question, but it could put you in a position of weakness.

Customer:

Moving wouldn't be a good enough reason? I hear that I should not sign the stipulation for less.

Customer:

time share

Customer:

I was kinda waiting to get my ducks in a row and really own the house.

Brandon M. :

Well, what's the huge rush? Why would you need to sign a stipulation now if you know that it needs to change again in a month?

Brandon M. :

To be clear, I'm not telling you "no", but it strikes me as a very short-term benefit that could really complicate your long-term objective.

Brandon M. :

Still, I know the law, but you know the facts. You're the expert on the situation :-)

Customer:

The father has been trying to rush me because the mediator made her recommendation in March and I have been stalling trying to find a home near them, and all the while negotiating with the dad for the best deal possible regardless of whether I moved or not. I got better terms negotiating directly with Dad, than the mediator gave me. Perhaps I should just call her and ask directly for 50/50 if I move?

Brandon M. :

The mediator only makes recommendations, so if you are asking for a 50/50 recommendation based on the move, you can do that, but she would probably want a new mediation before changing her recommendation.

Customer:

That is what I want too. I want to ask her to meet with us and make a new recommendation based on the move. I thought I had to wait until after the move though.

Customer:

How can I get her to interview the children?

Brandon M. :

Did you get this mediator through family court services, or privately?

Customer:

She was on a list of mediators who work with the court. Her office is private. Can I request a new mediator from family court services who is free?

Brandon M. :

Let's try to address one question at a time so we don't get confused. You asked if you can request a new mediator from family court services who is free. Did the court order you to attend this latest mediation, or did you do it without a court order?

Customer:

We did it without a court order. Our order says we have both stipulated to meet with this particular person when an issue comes up in our case.

Customer:

We always meet to determine the summer schedule each year. It changes a bit. This is the first change to the school year schedule in years.

Brandon M. :

Ok,, that makes sense.

Brandon M. :

If you file for a change in the custody/visitation order, the court will order you to attend mediation. Unless you request or agree to a private mediator, you will be assigned a mediator through Family Court Services for no charge. That said, they're typically not as good because they can't give your case much attention. If you work with a private mediator, that person is much better able to interview the kids involved simply because they're getting paid for the time.

Customer:

ok. the stipulation I agreed too was saying I had to find a place to stay to exercise visitation in the town my kids live in..that has typically been a room in a friends home or hotel. He has agreed to give me one extra day a week. Do you think it doesn't make sense to ask for the 50/50 based on the move after I get him to sign on the dotted line to give me better terms than her recommendation? He offered an me more time than what the mediator recommended, which was every other weekend and wednesday overnights. He has agreed to stipulate to I get every Thursday after school through Sunday, then Thursday-Saturday, alternating every other week. I am afraid if I don't sign I will get a worse deal. But it sounds like you are saying if I do sign, I may get stuck with that, because the move a month later may not seem significant enough to move to 50/50. Like it would be better if I waited to move?

Brandon M. :

If you do sign, you might get stuck with it. That is a possibility. Have you talked to the father about the fact that you're moving to town and interested in 50/50 custody once you do?

Customer:

I told him I am trying to move. He said if I don't get at least 2 bedrooms, He will take me to court because the kids need their own rooms. He said he will take me to court if I move to a bad neighborhood (which is all I can afford if I get two bedroom ). He says he will not give me any more time. He does not know I am buying a house. I hope this will show the court that I am serious about getting more time with my kids. By buying a house in the county. Dad says he will complain that it isXXXXXfrom him. He says I can not have 50/50 custody until he says so.

Customer:

I don't care what he says. I care what the judge or mediator is basing their decisions on.

Brandon M. :

Well, the courts don't care how many bedrooms a parent has or what kind of neighborhood the parent resides in because those things have nothing to do with the relationship between the child and the parents. I always take the approach that if "dad" doesn't like the house, he should be paying more child support. That usually shuts people up pretty quick.

Brandon M. :

So it sounds like the father is pretty controlling in this situation. At the very least, he's not ready to agree to a straight 50/50 custody.

Brandon M. :

Would it meet your needs if you accepted his offer, but with the stipulation that the agreement is subject to reassessment after six months?

Customer:

Yes. That could work. Then could I put in the change of circumstances because of the move?

Brandon M. :

Yes.

Customer:


Could I ask for 5 month. 6 months is december and we can usually not get in to see the mediator. I would rather meet in November or October so we could know what is going to happen for the next semester of school. Would that be pushing it?

Brandon M. :

You can ask for whatever the father is willing to agree to, but I personally think that 5 months is pushing it. If you send the signal that you're planning to seek a court ordered change as soon as you can, he may rescind his offer. 5 months tells him that you have a specific agenda. 6 months tells him that you're just contemplating the possibility of tweaking the order after you've both had a chance to try it out.

Brandon M. :

There is really no right or wrong answer, because both of us are doing something we can't do, which is read his mind. We can guess how he might respond, but either or both of us might make the wrong estimate. Personally, I think that 6 months is not suspicious, but he's a stranger to me and you would probably know best how he would react.

Brandon M. :

Does that make sense?

Customer:

Here is what I have experienced. He is not going to give me anything unless the court makes him do it. so I have to put something in place so a judge or mediator can see that I am being reasonable and thinking about the best interests of the children. I will ask for the 6 mos thing. As far as he knows and it is actually true, I don't know where i am going to live, or what work I will do. I am just moving because they are threatening to take away the majority of my time with my kids if I don't . Of course I will want to revisit this once the dust settles.

Customer:

Yes . you make sense

Customer:

i feel like crying

Brandon M. :

Based on the information you have provided, that sounds like it could be a reasonable strategy.

Brandon M. :

Well, it's ok to cry as long as you recognize that you're ok and things can be much worse. Some parents can't even talk to each other because they're so dysfunctional. I once had a client murdered by her husband over child custody. 1/2 of marriages end in divorce and lots of them have kids, so you have a broad spectrum to how well the parents get along afterwards. Obviously, this is unpleasant, but after you finish crying it out, it's also ok to appreciate that others have gotten through a lot worse and they're not any better than you are.

Brandon M. :

And, of course, plenty of child custody cases involve parents that were never married. I occasionally have clients who basically had one night with their child's other parent. That's tough.

Customer:

thank you. Do you know anyone who practices in Alameda county. You were helpful. I will say that I had a friend in Alameda who lost custody of her three kids because she lived in a studio, and the court ordered that she needed seperate rooms for the different genders and she couldn't sleep in the same room or on the couch in her own living room. That is why I am buying a four bedroom house in an "ok" area with the help of my church. you are right. I will cry. Then I will pray, and dust my self off and make a nice room for my children to come whenever they are able.

Brandon M. :

Well, I'm in Sacramento County, so most of my contacts are up here. The closest direct referral I can make is to someone in Campbell, Santa Clara County. Otherwise I would be inclined to refer you to the Alameda County Bar Association for a referral: https://www.acbanet.org/lrs/

Customer:

are you really typing?

Brandon M. :

By the way, I don't know the situation with your friend in Alameda, but the only circumstances I have seen where the court has a problem with letting opposite genders sharing a bedroom is when there is something more to it. The state Supreme Court has even said that homelessness is not a legal basis for taking custody, so separate bedrooms alone shouldn't be a problem under ordinary circumstances (assuming the judge isn't making a mistake).

Brandon M. :

I am, yes. Does it say that I'm typing?

Customer:

oh okay. I need a real lawyer I think. She didn't have a lawyer and her husband did. Same as me.

Brandon M. :

Certainly. Take care, and I wish you the best.

Brandon M. :

Hey, quick question: how much do you each earn?

Customer:

he earns 12,000 a month. I earn 1000-3000 a month depending on the month. I am an adjunct professor so i live off unemployment during winter and summer. We both waived child support.

Brandon M. :

Ok, you really, really need to get an attorney involved. Based on those numbers, (1) he should almost certainly be paying your attorney fees, and (2) he should probably be paying you child support.

Brandon M. :

Family Code section 2030 allows the court to order that he pay your attorney fees based on an inequality in your incomes alone, to ensure that you have equal access to justice.

Brandon M. :

To be clear, section 2030 applies to children that are the production of marriage. Even if the parties were never married, there is an identical statute that would apply.

Customer:

wow. I didn't know that. weird that one of my previous attorneys didn't know that. I usually pay an hour at a time for consultations. We were definitely married.

Customer:

This is for the state of Ca?

Brandon M. :

Of course, yes :-)

Brandon M. :

California Family Code section 2030.

Customer:

wow. don't mean to offend. just shocked.

Brandon M. :

No offense. Please do not misinterpret my tone :-)

Brandon M. :

You can't hear my voice or see my face... the tone can sometimes look differently in print. I'm not offended at all.

Customer:

the smily faces help.

Customer:

is there a way to save this conversation so I can refer to it later?

Brandon M. :

Yes. There are three ways. (1) you can email a request toXXX@XXXXXX.XXX . That is our customer service email (though they will likely not send it until tomorrow). (2) you can copy and paste it into a new document using your right mouse key. Or (3) you can save the web address: http://www.justanswer.com/family-law/7vd00-joint-physical-custody-back-visitation.html

Customer:

k thanks. so you wanna get married?

Brandon M. :

I get that question from time to time, and I'm always curious what would happen if I said "yes".

Brandon M. :

You would run for the hills and you know it!

Customer:

funny thing is I am a sought after dating coach and stress reduction teacher. I really learned a lot about love. But not so much about the law. Me personally, I would say lets meet for coffee.

Customer:

Actually that is a lie. As a dating coach and personally, I would never advise a woman to ask a man out. but in real life I would say I feel like having a cup of tea...blah blah. let me read what you are typing away and let you get back to saving lives.

Brandon M. :

I misread what you wrote... I thought you had said that you sought after a dating coach. You're a sought after dating coach. That has to be fascinating work.

Brandon M. :

Well, tell your clients to become an expert on JustAnswer... I think all of our experts get proposed to from time to time.

Customer:

its pretty easy. i see what is beautiful about an individual and help them to fall in love with themselves and be willing to share that with the world. Then they can choose to be with the one who really keeps them in their natural state of feeling good about who they are . All the best.

Customer:

Yasmina Porter

Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12236
Experience: Attorney experienced in all aspects of family law
Brandon M. and 3 other Family Law Specialists are ready to help you

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