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My sons mother is interferring with my access to my son.

Customer Question
Mother has physical custody....
Mother has physical custody. Together we have joint custody (filed in San Diego, CA in 2004). Part of the agreement was that she had to stay within reasonable proximity unless she had written permission from me. I''m in Los Angeles. She next moved to Solano county in California near Sacramento. This affected my visitation because I couldn''t visit him twice a month on weekends. Then she lost her nurse license and wanted to go to New York City to get a job. I reluctantly agreed (but not in writing). Now I can only see him Christmas and summer. She refuses to put him on the plane alone so I either have to but 3 sets of round-trip tickets to take him back and forth or I have to go to NYC and spend the time there. She allows me to stay in their apartment but it is awkward. Also she insists on controlling when and how much I see him during the summer, often finding excuses to limit the amount of time. I want to limit her controlling behavior. Do I have to fight her in NY or in CA
Submitted: 9 years ago.Category: Family Law
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8/1/2008
Family Lawyer: Attorney & Mediator, Lawyer replied 9 years ago
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Thank you for your question.

As the original order was issued in California and since you remain a resident of that state, you can proceed with a review hearing in California. Had all parties moved away from California, then proper jurisdiction would have been New York, but this is not the case since you remain a resident of California.

Given the information you have provided, it would be a good idea to modify the current custody orders that you have. The relocation has definitely frustrated visitation. Typically a child who is five years or older can be ordered to travel alone (through airport escort), unless the child has some special needs or the child is not considered capable of traveling unaccompanied. You can ask to modify your current parenting arrangements, that way a new schedule can be arranged.



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Customer reply replied 9 years ago
Reply to LawNinvest's Post: If I want to have physical custody, how is that determined? Is he allowed to make that determination and the judge will concur within reason? This is a part of modifying the custody arrangement.
Family Lawyer: Attorney & Mediator, Lawyer replied 9 years ago
Thank you for your reply.

In general to change custody you would need to show a change in circumstances that is affecting the child's welfare/best interests. This would be showing that the mother is unfit to parent her child or is exposing the child to a risk of harm, abuse or neglectful environment. Typically just relocating to another state will not result in a change in physical custody.

In addition, the court does not permit a child to decide where he wishes to live as a child does not have the legal capacity to decide between his parents, only the judge decides on a case by case basis whether the change in custody is warranted. A child in his teens is permitted to state a preference but that preference is not controlling as the judge must consider the total reasons for the change.
Factors considered in a custody case are as follows:

In making a determination of the best interest of the child, the court shall, among any other factors it finds relevant, consider all of the following: (a) The health, safety, and welfare of the child. (b) Any history of abuse by one parent or any other person seeking custody against any of the following: (1) Any child to whom he or she is related by blood or affinity or with whom he or she has had a caretaking relationship, no matter how temporary. (2) The other parent. (3) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship. (c) The nature and amount of contact with both parents. (d) The habitual or continual illegal use of controlled substances or habitual or continual abuse of alcohol by either parent. Notwithstanding any other provision of law, in any proceeding to determine child custody or visitation with a child, every custody or visitation order shall contain all of the following: (1) The basis for the court's exercise of jurisdiction. (2) The manner in which notice and opportunity to be heard were given. (3) A clear description of the custody and visitation rights of each party. (4) A provision stating that a violation of the order may subject the party in violation to civil or criminal penalties, or both. (5) Identification of the country of habitual residence of the child or children. (California Code - Sections: 3011, 3020, 3024, 3040, 3042)


If I have been helpful, please click Accept for my time and research. If you need more help, please click reply. Positive Feedback is greatly appreciated and reciprocated. Feedback should relate to customer service and not about the law, which I have no control over, thank you.

Legal Disclaimer. The information given by me is not legal advice. You should not and may not rely on anything on this website as legal advice.I am not establishing an attorney-client relationship with you. I am providing only research, resources and information only for you to be informed and educated about your particular needs and my answer is limited to the facts presented. You are only paying me for such information given. I do not provide general or specific legal advice. . I also do not claim to be licensed to practice in the state where this information is being provided. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and it’s associated sites. As law is always changing, you are recommended to speak with the appropriate legal counsel for accurate and complete information. Thank you.
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