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Phillips Esq.
Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 12930
Experience:  B.A.; M.B.A.; J.D.
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I have three teens who reside with me and my wife, The kids

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I have three teens who reside with me and my wife, The kids visit their mom who moved two hours away in January with her new husband after we shared custody for 5 years. She has told my kids to keep secrets from me for years so as to do whatever she wanted and paint me as the bad guy. I just found out a big secret she and the kids have been keeping from me. It is that her new husband is on parole for two violent assaults a few years apart the most recent in 2011. He has two strikes and one of the assaults was a domestic violence case in which he initially was charged with child abuse but plead to the felony assault w/strike. I paid for a background check on him after my son was kicked out of the house while visiting and assaulted (stepdad shoved him) by the husband. While son was staying with uncle after the assault (I was not called) stepdad cut up my son's favorite football jersey. The guy drinks though it's against his parole condiitions and he never completed batterer's counseling or rehab. Mom is so head over heels with husband that she chooses to keep his background and much of what occurs at her house a secret so I don't even have the whole story. Oh and I have twin 15 year old girls and a 16 year old boy and they are good kids (never been in trouble with law/don't cut school/get good grades). Since we didn't go to court when she moved away I was planning on filing for sole physcial/legal before I learned these troubling facts. I do not want my kids' time with their mom to be reduced any more than it already has since she moved away. However, I am very concerned at husband's treatment of my kids and am afraid he will not stop at shoving if he gets mad at my son again. Question: Should I file an ex parte custody hearing based on what I know and what happened or should I file a motion to modify custody and visitation? Also, what should I ask for under visitation? I don't want to keep kids from mom. Also, given her long history of telling the kids to keep secrets and lie to me if she agrees to send husband away on visitation weekends there is no way I would trust her. Edit: For clarification, all parties involved are in California.

Submitted: 1 year ago.
Category: Family Law
Expert:  Phillips Esq. replied 1 year ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.



I have three teens who reside with me and my wife, The kids visit their mom who moved two hours away in January with her new husband after we shared custody for 5 years. She has told my kids to keep secrets from me for years so as to do whatever she wanted and paint me as the bad guy. I just found out a big secret she and the kids have been keeping from me. It is that her new husband is on parole for two violent assaults a few years apart the most recent in 2011. He has two strikes and one of the assaults was a domestic violence case in which he initially was charged with child abuse but plead to the felony assault w/strike. I paid for a background check on him after my son was kicked out of the house while visiting and assaulted (stepdad shoved him) by the husband. While son was staying with uncle after the assault (I was not called) stepdad cut up my son's favorite football jersey. The guy drinks though it's against his parole condiitions and he never completed batterer's counseling or rehab. Mom is so head over heels with husband that she chooses to keep his background and much of what occurs at her house a secret so I don't even have the whole story. Oh and I have twin 15 year old girls and a 16 year old boy and they are good kids (never been in trouble with law/don't cut school/get good grades). Since we didn't go to court when she moved away I was planning on filing for sole physcial/legal before I learned these troubling facts. I do not want my kids' time with their mom to be reduced any more than it already has since she moved away. However, I am very concerned at husband's treatment of my kids and am afraid he will not stop at shoving if he gets mad at my son again. Question: Should I file an ex parte custody hearing based on what I know and what happened or should I file a motion to modify custody and visitation?



Response: You need to file for Application for Modification of Custody and Visitation and ask for sole custody with restricted visitation to the mother. That is, it would be alright for the children to visit with their mother when the mother's husband is not around. However, there is no way that you can know that for sure since the mother has kept secrets from you and instructed the kids to do the same. So, I am not sure that it is a good idea to grant the mother visitation at this time when her husband is a ticking time bomb. The better course of action may be for the mother to prove to the Court that her husband is undergoing anger management program and that he is complying with the terms of his probation before the kids can visit her.

Also, what should I ask for under visitation? I don't want to keep kids from mom. Also, given her long history of telling the kids to keep secrets and lie to me if she agrees to send husband away on visitation weekends there is no way I would trust her. Edit: For clarification, all parties involved are in California.



Response 2: See my previous response.

In a custody case, the Court would make a decision based on what is in the best interests of the children by looking at the living arrangement of the parties to the custody dispute, their lifestyles, associations, parenting skills, etc. If the Court finds after reviewing these factors that the children would be better off with you having sole custody, the Court would rule in your favor. So, it is very important that you tell the Court any and all reasons why sole custody should be given to you, just like you did in your narrative here; any witnesses should be brought to the Court to testify. Remember that the Court can only make decision based on the evidence presented to the Court.

Click on the link below for modification forms and instructions:

http://www.courts.ca.gov/1187.htm

Phillips Esq., Attorney-at-Law
Category: Family Law
Satisfied Customers: 12930
Experience: B.A.; M.B.A.; J.D.
Phillips Esq. and 9 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

Thanks and I'm working on the supporting declaration now. I do have a couple of clarification questions:


1. Mom is scheduled to have kids at her house weekend after the upcoming weekend. A motion hearing takes 4-6 weeks from filing to hearing. You did not say an ex parte was a good idea so I'm guessing its too drastic. However, I don't want to be charged with "failure to protect" or have anything happen to the kids. Mom made son apologize to husband before he could return to her house so that tells me she won't protect them.


 


2. Because she has a history of sharing actual custody documents with the kids and telling them that I am "trying to keep them from her" I am afraid to actually write in my documents that I want her restricted from having the kids at her house until he under some supervision and her place is safe. I was considering asking for the court's guidance in what arrangement was best. Given these concerns are you saying that I need to specificially request these orders in my docs?


Thanks again.

Expert:  Phillips Esq. replied 1 year ago.

Thanks and I'm working on the supporting declaration now. I do have a couple of clarification questions:

1. Mom is scheduled to have kids at her house weekend after the upcoming weekend. A motion hearing takes 4-6 weeks from filing to hearing. You did not say an ex parte was a good idea so I'm guessing its too drastic. However, I don't want to be charged with "failure to protect" or have anything happen to the kids. Mom made son apologize to husband before he could return to her house so that tells me she won't protect them.

Response 1: You can file for Emergency (ex parte) Custody simultaneously with regular modification as time is of the essence here. You would want to do everything legally possible to prevent the kids from going back to their mother until her domestic situation is stable.

2. Because she has a history of sharing actual custody documents with the kids and telling them that I am "trying to keep them from her" I am afraid to actually write in my documents that I want her restricted from having the kids at her house until he under some supervision and her place is safe. I was considering asking for the court's guidance in what arrangement was best. Given these concerns are you saying that I need to specificially request these orders in my docs?

Thanks again.

Response 2: Well, that is quite improper for her to do that. In any event, in making any request to the Court, you have to tell the Court exactly what you want and why you are requesting it. You cannot just write down you want sole custody without giving the Court a reason why you want sole custody. You also cannot say that you want sole custody without telling the Court whether or not you still want the mother to have unrestricted visitation or generous visitation There is no way around that. However, you do not have to spell everything out in your application. You can give a condensed reason of your custody request and what you for the mother—that is, you still want the mother to have visitation, then at the Court hearing, you can be more open with the Court. You may also tell the Court at that time why you were not specific in your request because you are afraid that the mother would share the document with the children and further make things worse for everyone.

Let me know if you still further clarification.

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