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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Family Law
Satisfied Customers: 29985
Experience:  Attorney with experience in family law.
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My husband and I have been married 6 years, we have 2 young

Customer Question

My husband and I have been married 6 years, we have 2 young children. I moved over seas, over 2 years ago with them. He is filing for divorce as I requested. He wants custody of the children for the summer and every second christmas. I want full custody, I don't trust him with the children alone. What can I do, if he is filing and I am over seas?
Submitted: 1 year ago.
Category: Family Law
Expert:  Lucy, Esq. replied 1 year ago.


I'm Lucy, and I'd be happy to answer your questions today. I'm sorry to hear about your dilemma.

You have the ability to file a response to the divorce Complaint, explaining why it is in the best interests of the children to live with you overseas full-time rather than spending any time with their father. Cal. Family Code, Section 3040 provides that judges should when possible order shared custody of children. The same statute also says that the judge cannot decide custody based on the sex of the parent requesting it. That means you need to be able to show why it's in the best interests of the children not to have any relationship with their father. Usually, that is going to require showing one of the following:

  • That the father has a history of drug and alcohol abuse, or an ongoing problem with either such that he presents a danger to the children.
  • That the father has a mental illness that leaves him unfit to parent.
  • That the father has a physical disability making him incapable of caring for a child.
  • That the father has a history of violence or child abuse, such that he presents a danger to the children.
  • Any other fact that shows the children are not safe with their father.

Essentially, you have to show that he's such an unfit parent that he should never be able to spend time with the children alone and should have to come visit you in order to see them (or never see them at all). The judge could order you to share the costs of his travel to wherever you're living, since he wouldn't have hotel expenses if the children were to stay with him at his home.

It would probably be easiest to hire a lawyer in the county where the children live, because flying back and forth to go to court could get expensive. A good place to find reviews from former clients is If you prefer to fill out forms and mail them to the court yourself (make sure you give yourself plenty of time), the court has forms available on their website. If you've agreed that your husband will file first, you don't need to do anything until he serves you with the forms.

If you have any questions or concerns about my response, please reply WITHOUT RATING. It's important that you are 100% satisfied with my courtesy and professionalism. Otherwise, please rate my service positively so I am paid for the time I spend answering questions. If you are on a mobile device, you may need to scroll to the right. There is no charge for follow-up questions. Thank you.

Customer: replied 1 year ago.
Is it better if I file first? I am currently living in Ireland so property law is different in this country than california. Child support would be lower too. Is there such thing as getting a lawyer to show up at court for me? Or is that too expensive? I don't have any income. Expect the money he sends for the kids and I each month.
When it comes to showing a judge why I would not trust him, that would be extremely hard, I would have to get my 6 year old to testify since my husband scared him to death on his 5th birthday by holding him up by the neck of his shirt because he wanted me to read him a night time book instead of him.
I do have a picture of me with a black eye, that he gave me when I was pregnant in 2013. I have phone logs to prove he was constantly on the phone with other woman while we were living together. Other than that everything that he has done, smoke weed every night, verbal abusive, bad temper would be my word only.
I am so scared for my children, I couldn't send them to America every summer and second Christmas.
Expert:  Lucy, Esq. replied 1 year ago.

As long as the kids are living with you in Ireland and you don't have any property to divide in California, you should be able to file there. An Irish judge couldn't make custody decisions if the kids were living in California. It is possible to send a lawyer to court in California without you being present, or to do your appearance by phone while having a lawyer in the courtroom with you. But you don't have to file in California unless you want an order that he pay you alimony on top of child support - which usually wouldn't be ordered after a 6 year marriage.

Customer: replied 1 year ago.
But would the child benefit be lowered if I file here? Which is better if I file or he does?
Expert:  Lucy, Esq. replied 1 year ago.

I'm afraid I don't know Ireland law, so you'd have to talk to an Irish lawyer about what the child benefit there would be.

It sounds like it would be better for you to have the case heard locally. Doing the divorce in California could be very expensive, and the law makes it difficult to deprive the other parent of custody and visitation entirely.

Customer: replied 1 year ago.
He owns the home, where we lived while married. But I did a lot of work to it, painted it and did it up so I want a percentage of interest and the increase in the house value. I do not want to deprive him, he can come here and visit his children any time. So you are saying it is extremely hard to get full custody?
Expert:  Lucy, Esq. replied 1 year ago.

California law strongly disfavors full custody for one parent.

Expert:  Lucy, Esq. replied 1 year ago.

But if he doesn't consent to having the case heard in Ireland, you'll have trouble getting half the equity in the house. You may wind up having to also go to court in California to split it up.

Customer: replied 1 year ago.
If I get the case heard here.... How does that work? Would he have to fly over here for court or get a lawyer here? Would we have to go to court in California if I WASN'T going for part of the house?
Expert:  Lucy, Esq. replied 1 year ago.

A case filed in Ireland cannot be heard in California. He'd have to decide if he wanted to fly there to appear in court to seek shared parenting, or he could hire a lawyer in Ireland to handle the case for him. If he appears in this case and submits to the jurisdiction of the Irish courts, you can still ask for part of the house. You only need to go to the CA courts if you want your share of the equity in the house and he declines to submit to appear in the case in Ireland.

Expert:  Lucy, Esq. replied 1 year ago.

Did you have any other questions about this?

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