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S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2511
Experience:  I have practiced family law since 1996, focusing on child custody and domestic violence
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California Family Law Questions: #1 Dissolution judgement

Customer Question

California Family Law Questions:
#1 Dissolution judgement states marital status ended in 2010, but judge didn't sign until 2012. Can I still file motion for contempt on what was stipulated, agreed, and ordered if respondent has not honored the agreements? There are a number of items that have not been honored (ie: no payments for community property, no college fund for children, no life insurance policy for children, health insurance for children not kept current, etc). I read that there is a statute of limitations. Also, I read that Contempt motions can bring criminal charges with community service and fines, or jail, but I don't want that. Only to compel respondent to honor agreement.
#2 Can I motion for modification stipulating 2 different custody arrangements for two teenage children? One to change from every other week to every two weeks while in the same town and the second for the option to move out of state and change custody with the stipulation that teenagers can decide to move in with me at a certain age if/when I move?
Tried setting up a mediation case and respondent refused to go, spoke with them in person and they said I am not allowed to leave. Asked them about the money, but they filed for bankruptcy and told me they don't have to honor the community property agreement.
Can no longer afford to live in the same area and living in a very crime ridden area having to commute 4 hours a day to take children to and from school on my custody weeks. Can't afford to lose 20 hours of work a week haven't been given anything for community property, only receive $300/child per month.
Thanks for your feedback (Cannot afford to hire an attorney, as the cost will take all the money that was owed me for the community property).
Submitted: 1 year ago.
Category: Family Law
Expert:  S. Kincaid replied 1 year ago.

#1. Divorce can be granted retroactively in California. The Judgment should state that it is entered "nunc pro tunc." With regard to contempt, yes, you can motion for contempt for failure to obey a court order, if you can prove that he was served with or signed the order. (He cannot be found in contempt unless he had legal knowledge of what he was required to do.) You can ask for whatever sanctions you wish, that will coerce him into compliance. For example, you could ask for a daily monetary fine until he comes current in his obligations. With regard to health insurance for the children, if you have incurred medical expenses for them as a result of his contempt, he can be ordered to pay up to 100% of those expenses. Unfortunately, for some parties, the threat of incarceration is the only thing that will convince them to abide by a court order. Usually, the threat is sufficient, and incarceration does not actually occur. The point of civil contempt is to coerce compliance, not to punish.

#2. Custody can be modified when there is a change in circumstances that renders it in the child's best interests for a new custody order to be entered. However, the Court will not enter an order letting the children decide in advance where to live or guess at what might happen in the future. The only way to get such an order entered would be by agreement of the parties. If the children already live with you, the presumption is that you should be allowed to relocate with the children. However, you would have to get court permission to do so.

Does this answer your questions?

Customer: replied 1 year ago.
Thanks Steven K,The custody agreement is 50/50 alternating week to week. So the custody I would ask for would be to shift to having them alternating every two weeks while I'm still in the same city, but to change the custody arrangement to be with father for school and with me for spring, summer, winter breaks.Also, can I submit these modification orders without representation and the judge will still respect the requests? Specifically because the $ owed from respondent is equal to a retainer cost.
Expert:  S. Kincaid replied 1 year ago.

It really depends on the judge and how well you present your case. A lot of people represent themselves and do fine. But I've also seen parties be disrespected because they didn't have a lawyer.

Expert:  S. Kincaid replied 1 year ago.

Is the other parent agreeable to your request?

Customer: replied 1 year ago.
No the other parent would not go to mediation and told me I'm not allowed to move
Expert:  S. Kincaid replied 1 year ago.

Then you would have to convince the judge that there has been a change in circumstances that makes it in your children's best interests to enter the orders you're requesting.