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Your ex parte request has considerable merit. The court will want to ensure that transferring custody to you will not be taking the child "out of the frying pan and into the fire," so to speak.
However, if you really want to get the court's attention, you would want to be standing in the courtroom, even though the ex parte would be ruled on based upon the pleadings alone.
Your attorney, if he/she is competent, will ask the court for an immediate "3118" investigation, so as to quickly ascertain the child's health and safety circumstances. After that, the judge may "trail" the ex parte hearing until the investigator reports, and then make a ruling. Be there for that ruling and the judge may just turn the child over to you, pending further orders.
Hope this helps.
In your opinion is my case any stronger considering this is the second time this same situation has happened with her father?
I don't know what the father was arrested for, but the fact that he cannot exercise custody while in jail, and that apparently he can't stay out of jail, would certainly motivate me, were I the judge to make some changes.
The issue then revolves around you: is there a reason why you would be a poor choice, and why foster care or some other relative in California may be a better choice. That would where my mind would immediately go. I would want to know my options before making a decision.
He was arrested for evading arrested and driving on a suspended/revoked license. He was sentenced to 100 days in jail.
Since I am the only other person with legal custody would foster care be an option? While her father can't exercise custody now I think foster care would be far worse. My situation is fine. I'm gainfully employed and have my oldest daughter living with me. Her father and I had an agreement for my youngest to remain in California with him. Immediately upon my leaving the state that agreement went to the dogs by him. In addition to being incarcerated he's also in violation of our court order which says he has to provide a way for her to communicate with me. He told the person whose care he left our daughter in not to allow her to speak with me so I wouldn't be made aware that he was in jail so he wouldn't lose custody. Sorry for the long story but I wanted you to have a little background. Probably should have provided all of that first. Is it legal for him to even leave her in the care of a stranger to me? I'm sorry if my questions are trivial.
Nonparent custody is lawful. Placement in foster care directly from the family court is not possible. But, the judge could ask county services to take the child, and then relinquish jurisdiction to the juvenile court -- which would accomplish the same thing.
Re being legal to leave the child with a stranger -- yes. Though, as parent you have the right to ask the court to award temporary primary custody to you.