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I just had a child visitation hearing that was finalized and…

Hello. I just had a...
Hello. I just had a child visitation hearing that was finalized and I do not agree with the final orders. What can I do? ---------My child was removed by DCFS and law enforcement from his mother's custody due to physical assault of the stepfather, 4 counts of neglect on the mother, and other assaults from both the mother and step father. The court also found that the mother and stepfather had been coaching the child to lie about the assault incident in order to avoid "getting the stepfather into trouble."After 1 year in court, the mother and stepfather received more visitation rights. In between this time, the mother and stepfather moved approximately 5.5 hours away from where the child resides with me without informing anyone of the move, and I had to resign from my job in order to take immediate custody and care of my son. I have not been able to obtain consistent employment since that time and my car repossessed shortly after, due to loss of job and inability to count the payments. The court ordered the mother to pay monthly child support since Dec. 2016. Only one third party intercepted payment has been made. Even after receiving more visitation time, from Jan. 2017 to Present (Sep. 20, 2017) the mother has only visited with her child 2-3 times, with a 3-5 month gap in between. All the financial responsibility (school activities, daily clothing, transportation, extracurricular developmental activities, etc, is on me). On Sep 19, 2017, we went back to court again to do a visitation modification lined under a restraining order request filed by the mother, which was dismissed.After all this, the Commissioner:
1. Overturned the sole legal custody and awarded the mother joint legal custody.
2. Awarded a summer visitation schedule of switching the child back and forth every week.
3. Ordered that the receiving party of the child be responsible for transportation (the mother in LA County, and me, the father, in Salinas County).I want to appeal these 3 rulings based on the original case I made in at the hearing:1. Legal custody should be ordered back to me due to the mother lacking evidence that she can make those decisions.2. Summer and winter vacation breaks to be full summer and winter break visitations with mother on even years and father on odd years. (This would alleviate the constant disappointment of the child when the mother says, "I can't make it to pick you up because I do not have gas money;" in which she has done from Jan 2017-Sep 2017. Give the child the ability to interact with his friends all summer long. Enable the child to be registered in summer programs, camps and activities. Allow the child to travel and visit with family members outside of the state, which he never gets to see otherwise. Cut back on the transportation spending of the parents and make visitation more achievable for the mother, instead of my having to scramble to find and pay for childcare that I am not being assisted with).
3. Transportation solely required by the non-custodial parent. (This due to: (i) The mother moving a great deal away from where the child resides without informing, consulting or filing the proper paperworks with the court or myself before the move, (ii) My having to provide 100% of the fiscal responsibility of the child, (iii) My lack of a car because of its repossession after I had to resign from my job due to abruptly and immediately having to take custody of my son, (iv) My not being able to attain permanent employ after having to resign from my job, (v) Non-custodial parent's failure to pay any child support).Thank you for listening and helping.
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Answered in 2 hours by:
9/20/2017
S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2,567
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
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Appeals are very hard to win. You have to prove more than bad judgment, you must show that the Court made a legal error. Did the commissioner make any statement explaining why he was making these rulings?

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Customer reply replied 10 months ago
No
Customer reply replied 10 months ago
When I was making my arguments, he made, what I believe to be, facial facial expressions of disbelief or "I've heard it all before." After making the judgement, when I was attempting to clarify my arguments, he simply stated that there are other people behind you waiting to have their turn and that I can read it all on the paper I will get.

Was this a hearing based on a Request for Order? Or was this a trial? Only trial decisions are appealable. If you have not had a trial yet, you may request a trial. Then if the same decision is entered, you could potentially appeal that.

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Customer reply replied 10 months ago
It was a trial hearing for a Donestic Violence Restraining Order in which visitation orders were modified under it.

Was it within a family law case or was it a standalone Restraining Order case? I'm asking because I need to know if this is a final order, as most orders during the pendency of a case are not appealable.

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Customer reply replied 10 months ago
There were previous hearings on the family law case following the child's removal from the mother's custody, but those were finalized in June of 2016.There was another stand alone case (Motion to Show Contempt of Court) filed by the mother at the same time she filed for a Restraining Order Case. The commissioner dismissed that one about 3 months ago, stating that the mother did not actually state any prosecutable offenses that were committed since access to visitations were provided.The Restraining Order case in which the visitation modification was processed under, was a stand alone. The Restraining Order was also dismissed for lack to meet burden of proof, but visitation orders no reflect a legal custody change to joint instead of sole, and other aforementioned changes that I don't believe are beneficial changes for the child or myself as the custodial parent with 100% fiscal responsibility of the child.

Without seeing all the documents, I can't be sure, but I do see the possibility of an appellate issue in that procedure for modification of the custody order was not followed. As I said, I'd need to see all of the relevant documents to really assess that. If you want me to do that, it would be a premium service at an extra cost, or you could find someone locally to look at your file and make this assessment.

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Customer reply replied 10 months ago
Understood. Thank you. If I wanted to appeal, what actions would I take and what documents would be needed? Also, is there a statute of time, after a finalized case, that I most wait before filing an appeal or that I can't file an appeal after?

Rule 8.104 of the California Rules of Court defines the deadline as the earliest of: (1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, showing the date either was mailed; (2) 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled “Notice of Entry” of judgment or a file-stamped copy of the judgment, accompanied by proof of service; or (3) 180 days after entry of judgment. Here is a link giving information on appeals and the appellate procedures in California. Do you have any other questions?

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Customer reply replied 10 months ago
Thank you for taking the time to help me understand some things.One final question.When you said the procedure for modification of the custody order was not followed, could you expound on that for me please and if possible, direct me to a link(s) I can learn what the proper process should have been?

I'm sorry I didn't see your post before. The proper process for modification of a custody and visitation order is to file a Request for Order within the family law case.

S. Kincaid
S. Kincaid, Family Law Attorney
Category: Family Law
Satisfied Customers: 2,567
Experience: I have practiced family law since 1996, focusing on child custody and domestic violence
Verified
S. Kincaid and 87 other Family Law Specialists are ready to help you
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Customer reply replied 9 months ago
Thank you much. I appreciate it a lot.

You're welcome!

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