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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2509
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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I have been divorced for 12 years and weve had joint custody

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I have been divorced for 12 years and we've had joint custody with equal time for most of those years. My ex is now suing for custody, and yesterday in mediation I found out he wants to make a major change based on my son's grades (2.8) and thinking he needs more structure. He wants to make it 85/15 instead of the 60/40 we have now. What is the likelihood of that happening? We live in California and I don't have money for an attorney but he does so I'm freaking out. Thanks.
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

Can you tell me

1. How old is your son?

2. Do you have any insight into the grades...that is, why do you believe the grades are falling?
Customer: replied 4 years ago.

My son is 14. His grades haven't fallen, they're pretty much the same as always.

Thank you

If the grades have not fallen, then I think he may have a tough time winning this motion.

Can you tell me, has he filed the motion already? If so what does the complaint say? Does it specify why he claims that the change is needed (the change to the custody order)?
Customer: replied 4 years ago.

He filed to change custody from me having sole physical to him having sole based on residential requirements for my son's school. Sole is not needed for the residential parent and the child only needs to be with the residential parent 50% of the time. The only change to visitation stated on his first motion is "mediation, agreed to by both parties". We had mediation yesterday and he sprang this major change on me then. Our hearing is set for 7/31.

Thank you

I have to step away so will opt out and allow another attorney to assist you

just a moment please
Thank you for allowing me to assist you.

In California, modification can occur any time there is a change in circumstances that cause a change in the child's best interests, so that a modification will serve those interests. Where there is no change in circumstances, the Court is not supposed to modify a custody order.

You state that your son's grades have not changed, so I fail to see the change in circumstances that your ex would claim as the basis for modification.

Even if there were a change, the person requesting modification is supposed to show how a modification would address that change and be in the child's best interests. Why would giving him substantially more time help with your son's grades? I understand he is indicating stability, but changing a timeshare arrangement does not necessarily provide stability. In his request for order, does he specify why changing the order would be in your son's best interests?

May I ask what county in California this is in?
Customer: replied 4 years ago.

He said it was "suggested by someone" that if my son was with him all school nights maybe his grades would get better. But he doesn't want to give up weekends so his answer is all school nights plus every other weekend there and only every other weekend with me even though I work traditional weekends. My ex thinks I let our son be on the computer gaming too much instead of doing homework, which is not true, and being there will make him do his homework because he's not allowed on the computer there. The only statement he made in his order was wanting to change physical custody for residential reasons.


We are in Monterey county.

Legally, it does not sound like your ex has any basis for modification. I asked what county you are in to see if it is a county where I have some experience. I have not worked in Monterey County so I cannot comment on that county. I know that some judges and commissioners do not follow the law. But if your judge or commissioner does follow the law, the facts you have provided would not be a sufficient basis for modification. This is both because there is no change in circumstances and because there is no reason to believe that the change he requests would be in your son's best interests, even if there were a change in circumstances.
Customer: replied 4 years ago.

Our original order is significantly different than what we have done over the last few years. It was written when our son was three after all. We have been fairly amicable and have been able to make changes verbally as our son has gotten older. Is it reasonable to assume that officially changing the order to the defacto arrangement of the last two years is more likely than this new very different proposal he has made?

I would think so. The change in circumstances has to be changes since the last order was entered. There has been a significant change - you've been changing the timeshare of your child. The Court could consider that change and deem that maintaining the status quo is better than going back to the schedule that is written in the originl order. But based on what you said, I can't see any basis for changing it to 80/20 in his favor. That's not to say that it's impossible (I don't have all the facts and I do not know what your particular judge or commissioner will think) but legally, I see no basis for the modification that your ex desires.
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2509
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
S. Kincaid and other Family Law Specialists are ready to help you
Customer: replied 4 years ago.

Ok. Thank you Mr. Kincaid, you've put my mind at rest for now.

Happy to help!
Customer: replied 4 years ago.

A couple of follow up questions: do you think I should get an attorney and if so do you have any info on legal aid in my area? If I do get an attorney can I make him pay my legal fees since he's the one causing this mess?


What should I have for our hearing on 31st ie paperwork, etc.?

It's usually best to get an attorney, and you migt benefit from one, but it is possible to handle this on your own as well. Here is a link for resources in your area: