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RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 13902
Experience:  Experienced in multiple areas of the law.
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Hi, I still have a question out to you. Im not stressing it

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Hi, I still have a question out to you. I'm not stressing it as much as I was but I'd like your input. also, I have another question. although, I never asked for it, at my ex's last motion for 100% sole custody, I was actually awarded sole physical. I had a lawyer at the time and we just stayed quiet so that dad wouldn't fight it. My new question is what if anything does having sole physical custody mean from a perspective of him trying to get 50/50? Honestly, don't think he's aware I have sole.
Thank you for your question.

In order for him to be granted a motion for modification of custody (whether it is 50/50 or something else) he would have to show that since the time of the last order - where you were granted sole physical custody -- there has been a significant change in circumstances and that it is in the best interest of the child that this change be granted.

As you might imagine, while not an impossible burden to overcome, it is quite challenging. Clearly, if the court awarded you sole physical custody, they felt that the child was better off in your care. Unless things have dramatically changed in some way since that time, a court isn't going to modify the custody order just because the other parent asked for it.
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Customer: replied 4 years ago.

Lets talk about significant changes of circumstance. The actual changes are this:

1) he now lives with his wife and step child. At time of last order he was living apart from her.

2) I am now working.


The main points in his custody case are that I don't give him enough "extra time" outside our court-ordered timeshare and him alleging that I gave my kid presecription meds. Unfounded by CPS and Dr. tox screens, etc.


If the 2 things above are so "significant" then why hasn't he focused on them. All along I have said that he hasn't met the burden of proof for a change of custody. Our first hearing was rescheduled to a long cause trial and ex wanted to get kids more time in the interim. Judge denied him and said to his lawyer "I don't see that you've met the burden of proof."


I'm representing myselft in trial this week. All tips/info is appreciated.

Neither one of those things is significant, in my opinion. Significant to me means for example, you were taking a job out of stay and were going to move away, or you had developed a drug/alcohol problem and were neglecting the child, etc. It's reasonable to expect that you will work in order to care for your child. Him getting back together with his wife doesn't affect the care of your child.

As for visitation - you are only obligated to provide what the court says you must -nothing less, nothing more. He has the burden of proof as you correctly noted. If he brings up the issue of medications (which would be foolish if his lawyer knows there are toxicology screens/reports disproving this) you can introduce that as proof that this isn't true.

I don't know your situation, but this sounds like a desperate attempt by a person who wants 50/50 custody to attempt to reduce or eliminate his child support.
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Customer: replied 4 years ago.

I attended a settlement trial last week and the pro-temp judges said that my invalidating the mediator's report, which ex wants adopted because the recommendation is 50/50 - still leaves me with a shaky case because his lawyer will call the mediator as a witness (she was horrible to me in her report.) I know her report is filled with errors that I can prove, but all of this seems to be off the path of him meeting the "burden of proof". He hasn't done that. The pro-temps side-tracked my focus and you have really helped bring my clarity back.Your information was simple and clear and really on-point with my case positioning.


You nailed it with your observation. Yes, he wants to reduce his child support. I think it's a desperate attempt, too. Money is all it's ever been about. He tries to re-gain custody every 6 mos since he was re-married and purchaes a new home. The stress of it has about been the end of me, but I'm done being his victim and I'm going to fight hard, even without a lawyer.

Any suggestions for dealing with the mediator? Her report is invalidated per Rules of court. I'd like to find a way to exclude her testimony if possible. Discussed a motion of Limine with another expert but I don't know if it's necessary or possible just days before trial.

I reviewed the previous discussion with that expert and I have to agree with the detailed information provided. I would still file the Motion in Limine -the expert gave you some arguments to make as well -to try and exclude the mediator entirely. You have nothing to lose by filing the motion. You can still file the motion prior to trial.

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Customer: replied 4 years ago.

Can I file it one or two days before trial? Also, I know the formatiing etc. but I got side-tracked when the other expert told me in error that mediator's testimony is admissable in Ca. Wasn't sure where to go from there. What should be the reason I ask the court to exclude her testimony? It should be simple but I just can't wrap my brain around it. Since you looked at that discussion what would you suggest? I find your explanations very clear.

California doesn't have any state specific rules on deadlines to file a Motion in Limine. However, there may be local court rules that provide for such deadlines, or the judge may have signed a order regarding deadlines prior to trial for all motions to be submitted. So, it's impossible for me to say with certainty if you can still file.

As the previous expert noted, assuming you file the motion, approved or denied, chances are the father's lawyer is going to try and call the mediator as a witness, and if so, you'll want to object. If you filed the motion and it was granted, then you can simply argue that the mediator was excluded by the prior ruling, If you don't file the motion, or the motion is denied, you'll still want to make the same argument that you did make/plan to make in the motion in limine.

I think what the previous expert was saying about mediators testifying is that in some cases, yes, a mediator has been allowed to testify - in other words, it's up to the judge to decide.

Assuming the mediator is allowed to testify, you can question them on their report. Again, it's hard for me to tell you specifically what to do or so without knowing all the facts and reviewing documents (and even if I could do that, I cannot give you legal advice anyway), but it seems like from what I am reading, you should be able to get the mediator to admit that a) they are not an expert on child abuse/neglect, b) they did not witness any first hand abuse or neglect of the child, and c) there are no substantiated reports of abuse or neglect of the child.
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Customer: replied 4 years ago.

Thank you for getting me back on track. I will file the motion. I lost a day sulking and worrying but you've given me a tremendous pick-me-up. About having the mediator admit they are not an expert on child abuse/neglect - interestingly enough the topic is not an issue of interest, She never even aknowledged the neglect in her report. It focused more on the fact that I positoin myself as gatekeeper of the visitation since ex's complaint is that I do not grant him enough "extra-time" outside the orders. Since I have sole physical custody, the children primarily reside with me - yet mediator somehow interprets as "gatekeeping".


I understand that this forum is not legal advice, but the information does help me generate ideas. I wasn't asking you to specifically tell me what to do for the Limine, I was hoping for a verbiage suggestion that "speaks" to my intent. Even a one-liner that may grease my own wheels, if that makes sense.

Thank you for helping me re-gain my momentum and to stay positively focussed. You are much appreciated.

If that is the biggest argument the mediator is going to put forward, I have to wonder how much weight the judge would even give their testimony (assuming they were allowed to testify), simply because if you are in compliance with the court ordered visitation, you aren't doing anything wrong. You aren't under any obligation to grant more visitation time if you feel your child wouldn't benefit from it - you simply cannot deny the father the time granted to them, which you haven't.

Furthermore, there was obviously a reason the court set custody and visitation the way they did - if they wanted the father to have more visitation, they would have ordered it, and they didn't.

I am signing off for the evening (it's very late here on the East coast!) and may not be around tomorrow unfortunately, so if you need further assistance, I would suggest perhaps starting a new question and having another expert assist you. It was a pleasure to help you, however, this evening/morning.
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Customer: replied 4 years ago.

Thank you and good evening/good day. I was my pleasure to receive your expertise. Take care and God Bless.