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I have a situation. My brother and his girl friend have

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I have a situation...

I have a situation . My brother and his girl friend have lived together for about 9-10yrs his daughter is 7 turning 8 in April and his son is 2 yrs old. They have had issues during these years because his girlfriend seem bipolar and his him and makes holes on the wall and during this time the kids are inside the house living this situation so my brother left the house about a year ago and she remained living in my moms back house for free. The verbal agreement they had was they would live seperate for a while to see how things worked out but they would still see the kids. then she decided on her own to give him 9 days with the children and alternate and all of a sudden she changed it to he is allowed to see the children every other weekend with out any court order on hand. This past week she decides to tell him by text that he will not see his children until the court decides. She took his daughter out of school near the house in the middle of the year with out taking into account the childrens well being and my brother is unaware of where they are living now as she has not come home to my mothers back house where she was living for the past week. What can my brother do at this time? Can he go to police and file an abduction report? They have never been married but he is the father of both children

Lawyer's Assistant: Because real estate law varies from place to place, can you tell me what state this is in?

This is not real estate this is family law and it is in california

Lawyer's Assistant: Has anything been filed or reported?

I believe she filed child support as of now but nothing else

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

No i think this gives him a summary of what my question in order for him to give me some advise

Submitted: 5 months ago.Category: Legal
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2/6/2018
Lawyer: legalgems, Lawyer replied 5 months ago
legalgems
legalgems, Lawyer
Category: Legal
Satisfied Customers: 13,712
Experience: Just Answer consultant at Self employed
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Hello! I will be reviewing your question and posting a response momentarily; if you have any follow up questions please respond here. Thanks!

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Lawyer: legalgems, Lawyer replied 5 months ago

I am sorry to hear this; can you clarify if there is an acknowledgment of paternity (ie the father's name is ***** ***** birth certificate)?

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Customer reply replied 5 months ago
the father's name is ***** ***** kids birth certificates
Lawyer: legalgems, Lawyer replied 5 months ago

Thank you; in such instances then it does not require a paternity order by the court; however in order for a father that is unmarried to the mother to have custody or visitation the father must have a court order to that effect. I know that seems unfair but if the parties are unmarried then the court has determined that only the mother is entitled to custody of the child.

This is stated in family code 7611 and basically while the acknowledgment gives a father parental rights, this has been construed to mean the right to petition the court for custody and visitation; that is explained here:

http://www.courts.ca.gov/selfhelp-parentage.htm

Additionally it should be noted that if a mother abruptly withholds the children from the father when the father has been involved in their life that can be taken into account when the father petitions for custody/visitation; I'll post this so you can review and then continue.

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Lawyer: legalgems, Lawyer replied 5 months ago

Here are the statutory factors the court must consider in determining the best interests of the child:

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=3011.&lawCode=FAM

Please note this code that states the public policy preference is for continuing contact with both parents:

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=3020.&lawCode=FAM

so generally the court will look disfavorably on a parent that unreasonably affects this public policy goal.

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Customer reply replied 5 months ago
if this process takes 2 months to get done he will not be allowed to see his children? What kind of law is this?
Lawyer: legalgems, Lawyer replied 5 months ago

It is possible to apply for temporary orders pending a final hearing;

also the calendar will depend on the local judge's calendar.

Unfortunately most fathers are not aware of this which is why this may occur- the legislature/court apparently does not take that into consideration. Most fathers are under the impression that if there name is ***** ***** birth certificate they have equal rights but unfortunately that is not the case and it is a harsh rule. I can only provide the information even if I don't agree with it but I do understand the pain/frustration this causes.

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Customer reply replied 5 months ago
ok so he is in court right now can he get this right away?
Lawyer: legalgems, Lawyer replied 5 months ago

That would be based on the judge's determination as to what is in the children's best interests so that would be impossible to say.

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Lawyer: legalgems, Lawyer replied 5 months ago

But it is within the judge's authority to grant it.

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Customer reply replied 5 months ago
would their be a way to ask the judge to speak with Valerie his daughter that is 7yrs old. I am sure she will say how much her mom yells and how he would hit the father.
Lawyer: legalgems, Lawyer replied 5 months ago

Yes, the court may interview the child in chambers if the court wishes to speak with the child.

The parent may also request the judge to interview the child but that decision is up to the judge. The judge essentially has full control over the proceeding.

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Customer reply replied 5 months ago
ok is their anything else that he can file while in court?
Lawyer: legalgems, Lawyer replied 5 months ago

If custody or visitation is the main concern then a motion for custody/visitation would be the appropriate documents if paternity is already established.
The court may have a packet of forms that can be purchased for a nominal price.

Most local courts offer that service.

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Lawyer: legalgems, Lawyer replied 5 months ago

Hello again; just checking in to see how things worked out;

If you have no further questions a positive rating is most appreciated (at no additional cost to you) and allows the site to credit my account for the time spent assisting you!

if you have further questions please don't hesitate to reach out to me here on Just Answerand I will do my best to get you the requested information.
Thanks!

The above information is for educational purposes only. A consultation with a private attorney is recommended so they can apply the law to your specific facts, and suggest the best course of action. An attorney can be located here:
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