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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2510
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I live in california, and am the mother of a 1 year old, unmarried.

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I live in california, and am the mother of a 1 year old, unmarried. We lived together until a few weeks ago. He has filed for custody. He is telling me he has equal rights and time, and is entitled to our son 1/2 time right now. (Before Order) He works 60 hrs a week, I work 20. I have been the primary caretaker, feeding, middle of the night wake ups, bathing, etc. for the first year. I am not comfortable, and feel he may keep the baby if he doesnt get half time. I have been giving him the baby on his day off, + one night a week to the other grandparent. What should I do? He wants him the next 4 days...

We an answer to the above from previous expert that it is 50/50 and both have the same legal rights until an order is in place.

My question is does the court have guidelines as to reasonable visitattion for a one year old? The mother was the primary caretaker, Dad worked 60 hrs/wk. He now wants (or says he will TAKE) the baby 50% of the time. My daughter is more than willing to let him have frequent contact, and an all day visit on his day off. He wants the baby 3 1/2 days, most of which will be spent with a 65 year old grandparent. I am suggesting she not give the baby to him unless they have an agreement as to when the baby returns. He is an ok dad, but his Mom is a scrapper and wants the baby for herself. No drug/alcohol/abuse problems on either side...

Steven Kincaid :

Thank you for allowing me to assist you.

Steven Kincaid :

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.

Steven Kincaid :

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.

Steven Kincaid :

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.

Steven Kincaid :

Do you have any other questions?


W wereJeremy,


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:


  1. I feel it is Jeremy’s best interest to be nurtured by his Mother at this stage of his development. As time goes on, the Father plays a stronger role. I recognize that. That is just the nature of raising a child, and recognized by everyone as being true in a setting where there are two loving parents. They have different roles at different times.

  2. I have already attained certain knowledge that you have been deceptive about your work hours and who is caring for our son when he is in your care. I have been very flexible, and fair with visitation. I am concerned when you are deceptive, and do not respond to my texts/phone calls during your visitation. This seems to happen when are working rather than caring for our baby when you said you would be.

  3. I am very concerned about eating, sleeping, and bathing schedules. Just last visit you said he only slept 5 minutes all day. He was fussy. He was unhappy. He is never his normal self for two days after I get him back. By then you are wanting visitation again. This is unhealthy for Jeremy’s development.

  4. I am also concerned regarding the certain knowledge I have that he has spent extended periods of time at the restaurant for his care. I do not think a restaurant/bar is an appropriate environment for a 1 year old.

  5. BotXXXXX XXXXXne, I do not feel our arrangement so far has been in Jeremy’s best interest. I see the results every time he comes home. I feel that he is having a negative reaction to being separated from his primary caregiver, me. Up until our separation, you worked 60 hours a week, and spent very little time with him. Now you want to separate him from his “window to the world” and miraculously are able to get time off when you could not before.



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?

Steven Kincaid :

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.

Steven Kincaid :

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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