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Changing a Custody Agreement

Berkeley Parents Network > Advice > Family Relations > Changing a Custody Agreement


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Break agreement to get written permission for vacations?

Nov 2007

My ex and I have a custody arrangement in which we have to get one another's permission in writing in order to leave the nine surrounding counties or out of state with our child. I have primary custody of our three year old daughter. We have a difficult relationship to say the least. I asked him recently if I could take our daughter out of state (one state over) for Thanksgiving. It will not affect his court ordered time in any way as I will take her and have her back before his next scheduled visit. Verbally, he told me yes. When I asked him to shoot me a quick e-mail about it he dragged his feet and then a week later told me he would only ''allow'' me to go if I agreed for him to take our daughter to a farther away stated for '' a week or more'' during the summer or fall of this year (8+ months from now). Since there are no designated dates and it is so far off I told him that as long as we continue to communicate and he continues his sobriety I didn't think it would be a problem for a week. But of course with it being so far in the future and no actual dates I feel very uncomfortable about giving him a blanket ''yes'' for a trip that doesn't even exist yet. So my question is : Can he really prevent me from going? What could he do if I just went anyway? Any advice would be helpful. Or anyone who has had this experience. Thanks in advance! sarah


Please don't jeopardize your custody arrangement by breaking rules in the agreement. No matter how ''right'' or justified you feel, suddenly you will be legally wrong. And this guy will not let you get away with anything like that. And imagine what would happen under those circumstances if there were to be an accident with your child, God forbid. I would recommend writing to him and asking for the particulars of the trip he proposes, saying that of course you will say yes if he will write to you with the go-ahead for your trip and give you the details. You don't say much about what his drinking or drug situation is -- if he has been in rehab and is now supposed to be sober, I am thinking that taking your daughter on a trip for a week is probably within the realm of something that you are supposed to allow in the custody agreement. But if something happens between now and the proposed trip and can be demonstrated (i.e. there is some kind of incident or he has to go into rehab, etc.), I would think that you would in any case renegotiate custody. It's hard to trust anyway in these situations, but it sounds as if your present custody arrangement asks you to do so. Just don't break it yourself.... toeing the line
I'm so sorry you're having to deal with this situation. When I handled my own divorce years ago, I had to arrange for a custody hearing, and it was no big deal. I suggest you call a custody hearing and present your wish to the judge. You're not making an unreasonable request and it would probably be granted. You can do it all yourself and the court fee is minimal, as I recall. Hopefully someone with more recent experience can give you the details. Anon
Your question would best be answered by a lawyer who can look at your custody agreement. I'm not a lawyer but I've worked with the superior court (in another county) and know that judges, especially family court judges, don't take these issues lightly. In my opinion, it's best to stick as closely to the custody agreement as possible because you don't want your ex to have grounds to re-visit any issues in the future. I think you're doing right by suggesting that you keep the communication open, especially in writing. You could let him know that at this time, travel 8 months from now seems possible (if that's the case) but you don't know if something with her preschool or some other event will come up. That you'll have a better idea once he provides more details and just let him know that it's great that he wants to be involved with his daughter and that you'll do what you can to help. In the long run, it will begin to foster more trust and help to keep your daughter out of the ''adult'' matter of custody. Good luck. anon
He is manipulating you. I do not recommend breaking a court order in order to avoid his manipulation. You may just need to make trades or not ask for favors at all. Hopefully you both have email. Make requests by email. Keep it simple, direct, explicit, no explanations, no complaints. If he wants you to make a trade, consider doing so, but only within the constraints of the orders. In other words, do not agree to give him extra custodial time in exchange for permission to travel out of state. Emailing not only keeps the communication clear and documented, but it also documents your businesslike manner. So always write the email as if the court will be reading it. If he always says ''No'', then maybe the court will later allow you to travel without his OK. If he does not have email, write him a letter and keep a copy. Ask for a response to email within 24 hours. If he is passive-aggressive and does not answer, state in your next letter that since he frequently does not respond to your requests that you will assume that he is in agreement if he does not respond within 24 hours. Keep it a business transaction.

Want to change custody agreement because ex is drinking

March 2007

My ex-husband and I have one child together -- I have primary physical custody and we have joint legal custody. He has time with our child 1-2 days week, including 1 overnight. When we negotiated the custody agreement he was sober, and had been for a couple of years. Over the past 8 months he has relapsed repeatedly, which involves a week or more of binge drinking, and in the last two months he has been drinking for more days than he is sober. As much as I want a co-parent for my child, I am realizing that I can not rely on a situation that is so unpredictable. I do not want to worry and feel anxious every time I leave my child with him -- he is rarely honest with me about whether or not he has been drinking, which leaves me in a position to make a snap judgment during the transition time, which is very stressful.

I am exhausted from negotiating these waters alone, and I think it would be helpful to have the legal custody arrangement changed to reflect the current situation. In addition to a recommendation for a good attorney (I'm posting to recommendations too), I'd love some feedback on whether this is even possible. From what I've been reading, custody issues are very much in the hands of the judge, and they generally do not like to restrict the child's time with the non-custodial parent. Does anyone have any experience with this and a drinking or drug problem? What I would like to do is get sole legal custody with supervised visitation, but don't know if that is wishful thinking. anon


Hi, As agonizing as this situation is, I don't think you have a good chance of improving the situation. I was in a similar situation a few years ago, with a depressed ex-husband who went really downhill after the divorce and was drinking, engaging in erratic behavior, and was verbally abusive and extremely negligent, among other things. I had good documentation. Before going to court, I had primary custody, and he had visitation a couple of evenings a week.

I hired a lawyer and went to court asking for supervised visits and anger management/parenting classes for him. After the court date, we had 50% physical custody and joint legal custody. His behavior has become increasingly erratic and disturbing over the years, and the courts haven't limited his time with our children at all, in spite of the fact that at best, he's negligent and careless, at worst, very scary and dangerous.

As terrible as your situation is, just know that I envy you and would give almost anything to go back to the custody agreement I had before going to court. Think deeply before you file


Document as much as possible... your observations, legal problems such as duis, etc. A lawyer can write a document to file with a family court judge, and there are a few ways to go about accomplishing what you want or negotiating something acceptable. Your job is to protect your child, so it's an appropriate time to be ruthless. Not sorry I did this. prepare for the worst and hope for the best
I wish I had good, specific advice for you as I am in a very similar situation. I have not yet divorced my alcoholic husband (after three years of separation) in large part because of concerns about shared custody being granted due to lack of legal proof of his ''issues'', other than efforts at rehab which actually work in his favor. Currently my ex is not smart enough to insist on his right to overnights (it has NEVER happened) but might if a judge confirmed it. I would suggest you document every incidence of drunkeness (with dates and witnesses et), also, the police have assured me that you have the right to remove your child from his care regardless of custody arrangements if he seems intoxicated and you can get their help in doing so. I have heard of people getting the ex to agree to relinquish custody if caught drinking with the child, but that requires his cooperation. People who have never been in this situation will tell you many stupid things, ie ''just put your foot down'' just kidnap your child and move to a shelter, just explain everything to the judge. These are the same folks who probably said ''just leave him'' as if all of these problems would then just magically disappear when in fact leaving an abuser often means your kids will be forced to spend time alone with him, as the courts often view hearsay reports as vindictive and meant to unfairly exclude the other parent. I hope you can afford better legal advice than I could. I will pray for you. Am there, Doing that

Ex wants a week on, week off schedule for 7-y-o

Sept 2006

My ex-partner would like to change our current custody arrangement such that he would have our 7 year-old daughter for one week, then I would have her for a week. He says he is too busy and overworked with the schedule as it is, since he has another child with another woman and an erratic work schedule. I am reluctant to go for this arrangement because I fear that important things will not be taken care of, and weekly lessons, etc., will not be attended. Also, i feel as though I am catering to the schedule of someone who is far less ''busy'' than I am (I'm a single parent and fourth year PhD student at UCB).

In the past, I have always had my daughter during the school week. I have been the parent who takes care of all the school forms, insurance stuff, doctor visits, school projects, homework, school-contact, etc., and I fear that if I relinquish some of this responsibility to him, he will not see it through. Twice las year, he neglected to pick my daughter up from school--he just forgot. He says he will forget less, and be more involved, if he has her for a week at a time.

Also, I am afraid I will miss my daughter in the intervening week when I don't see her.

Does anyone out there have a custody arrangement like this with a dad who ''forgets'' a lot of things, and is unreliable with paperwork and deadlines? Please share any/all info you feel comfortable with--both positive and negative. Thanks anonymous


While I read your post, I initially thought perhaps it would be good for you to trust your ex with the essentials of day to day parenting; the appointments, lessons, paperwork, etc. then I read that he ''forgot'' to pick her up from school, and that he will ''forget less'' with the new arrangment. EXCUSE ME. On the planet I come from, you don't ''forget'' to pick up your kid, especially not from SCHOOL. But okay, maybe it's because of his custody schedule; he's not used to doing these things so he forgets them because they're not part of his regular schedule. I get that. For starts, would it be possible to give him more weekly responsibilities, i.e. he picks your daughter two regular days a week? That's he's assigned a couple of nights a week to have her with him after school, for dinner, and to work on homework projects? Maybe you two need to ease into this equitable custody arrangement slowly -- so he gets used the added responsibilit, and you start feeling a little better about losing the time you have. You'll miss her (and she'll probably miss you, too), but if you ease into it, everyone gets a chance to get used to the new schedule. Of course, you will need to make sure your child isn't lingering at school, forgotten by Mr. Dad, and make sure her appointments are met, but at least it gives everyone a chance to try. I do have one question though: if he's too 'busy' with the current schedule, how is having her for a week at a time somehow easier? Just a question... Anon

My re-marriage will change custody arrangements

May 2006

Hi, I am looking for a good Child custody Lawyer. My son is 4 years old and I have been a single parent since he was 4 months old. I have been very gracious in having his biological father stay at my home for past 4 years (2 days a week on my sofa) because he lives 2.5 hours away from my home. I have also let him take our son one weekend per month. (Usually it's a Thursday thru Sunday). I have been so flexible because I want my son to have a healthy relationship with his Father.

Living arrangements are changing now. I am getting married and moving (in the same area). I cannot disrespect my future husband by having my son's father sleep on the couch at our new home!

My son's Father is freaking out because we are moving and he cannot stay with us any longer. He is asking extreme arrangements to take my son over the summer months - 12 weeks straight! And during the school year he wants him 3 weekends a month. I am very stressed about this request because my son is too young (4 years old) to leave me for that length of time. I could not handle this arrangement as well – plus I am a working mom which also put’s a strain on me being away from my son.. My son lives in a very healthy environment; my partner,my son and I have become a great family together for these past 2 years. My partner is an excellent father figure and provider to my son. (My son’s Father does not go out of his way to ask if my son needs a new pair of shoes, or clothes. He does nothing above and beyond – just the minimum).

My son’s father and I have used a mediator to help us come up with the custody arrangements. I am not sure if we should use a mediator or just got to court with lawyers.

This time, I cannot help accommodate his requested arrangement. I think once my son gets older, he can start making decisions on where he will stay for the summer. But, he is too young right now.

There are so many more details on the background history - that would take several pages. I am seeking a good referral for a custody Layer. Also, if someone out there has good advice based on experience...please e-mail. Thank you for your help. Judy Law, if she's not booked, is wonderful (510-655-4250). She would ask me first what would be best for the kids, and she would recommend the course that would least drag out the conflict (even if that would mean fewer billable hours for her).

Here are other thoughts of advice, to take or leave:

- Most child therapists would agree that 12 weeks away from either parent is too much for a 4-year-old. Hopefully there would be a compromise, like more frequent weekends, or dad moving closer.

- It helped me to learn to separate the money issues from visitation, and to separate my frustrations with my ex's flaws from the reality that the kids need both parents.

- Your ex will be more insecure and defensive if he perceives you to be trying to replace him as a father. I hope this helps! Good luck! MW


I highly recommend these colleagues for custody issues: Margaret Hill, Jane Kaplan, Tracey Kauffman, Judy Law family law attorney

Other parent has requested a custody evaluation

March 2005

I would like advice and information from anyone who has gone through a custody evaluation. I have a 5 and a 6 year old who are resistant to spending time with their other parent and do not want to go for overnights. Court has recently given me primary custody; other parent has requested an eval and I have agreed. What will happen? WHat is the process like? WHat are the evaluatiors specifically looking for? Any advice or info much appreciated. concerned parent


Avoid a custody eval if possible, it is financially and emotionally costly. Get a lawyer and see if you can get a special master. This person is a therapist with the power of a judge. He/she can mediate conflicts between you and your ex. Ours is a life saver. Dr. Christine Pigeon. She is listed and her office is in Oakland. Generally you get to her through an attorney.

Best of luck and always remember that what is best for the kids is your goal, sometimes that means compromising your needs. Been there


Want to modify 50/50 agreement - spouse not doing her part

March 2004

My daughter is 8yrs. I want to file modification of my 50/50 joint/legal custody order. Reasons: ex does not put our daughter 1st/does not help with homework/enforce/does not take her to anything extra. (I do on my days -- piano/soccer/martial arts.) Only wants to drag her to her exercise classes where she has to wait in the lobby for her. Constantly, our daughter is tardy from school/ when the principal contacted her about it she said that she was well aware of it but couldn't control traffic; princpal said if it continues she would be suspended. My biggest concern is that she is hurting our child's future. She thinks shopping on the weekend - and not requiring her to do her school work - is more important. She just doesn't get it. I've really had enough and would glady pay her child support based on 50/50 share, if she would just let me have custody of her during the school week. She can have all the weekends. Please, Please help. P.S. Also, I had to fight her every step of the way during the divorce with her lies...the judge saw right through her. Thanks for any input. A Concerned Dad


Time with both parents is very important to a child, as long as the parents are 'OK'. From what you have said, your ex does sound OK! Though with a different emphasis in parenting - but not necessarily wrong?

If you are concerned about school work, then you could try communicating with your ex about it. In any case to get the level of hostility down is the absolute best thing you can do for your daughter.

If you can think far into the future this might help - keeping a good relationship with your child is so important. I feel that the child perceives these things very differently from the parents - it can be startling. Later, as teenagers, children can tell how they experienced earlier custody battles. The fighting hurts them - if there's any way to reduce it, that will help.

This isn't always possible - after abuse, and continuing abuse, it's not appropriate to ask for acceptance - in fact I think this is something that is wrong, and can lead to a continuation of abuse through custody proceedings. But that is not (at least apparently) your situation...

Before taking the step of increasing hostility and resentment by going back to court, maybe you could try doing the things you feel are important for your daughter when she is with you, and letting your ex parent in her own way? Your daughter will be learning f! rom you all the time at this age. So even at a very hard time, as custody proceedings are, your example is really important to your child... Jan


I'm not sure exactly what you're looking for, but it sounds like if you presented it to your ex in a really positive way, such as, I'd really like to spend more time working with our daughter on her homework and other activities. Can I take her 2 more days per week (or whatever)? and tell her that you know the $$ she receives is helpful to her and your daughter, so you'd be happy to keep the same level of support. Be non threatening, non critical, even though your reasons are critical, and she may be more inclined to go for it, especially if support is the same. (I previously dated a man w/ an ex who worked everything so that she would maximize child support. She'd drop the kid off with her sister to babysit so that dad wouldn't see that she wasn't really spending the time with her, and! she'd take days off work but lie about it so that her income would appear lower and wouldn't be questioned, and other things. so I know for some people it is about the money, but in their minds it's about the kid, so you have to be conciliatory & supportive if you really want to change something for the kid). anon
Hi, I really feel for you. I want to put in my two cents as someone who went through family courts some time ago hoping that they would address, among other things, the fact that my ex-spouse's and my split custody of the children was unfair to the children, who had in me a responsible parent who took care of their needs, helped with homework, etc, and in my ex a parent who was at best selfish and manipulative, at worst physically and emotionally abusive.

I was horrified by the response in the family court system. The mediator and the judge took on the attitude that unless my ex- spouse could be proved beyond a doubt to be a real danger to my children's lives that the custody would remain joint. Let me add that there is extreme prejudice in California and in many states against a parent who brings forth allegations of neglect or abuse. Even when, as in most cases, the allegations are true, the courts interpret them as evidence of a vindictive and manipulative ex-spouse using kids as pawns in a fight to hurt the other parent as much as possible, not as, as is the case for most of these allegations, a concerned parent trying to protect their kids from harm. There is a ''friendly parent'' component to how family courts decide these cases, which means that the ''friendly parent'' (the one who is not making allegations about the other parent--that is, the abusive parent), is more worthy of full custody because he or she is not causing conflict in the kids' lives. What does this mean? That when a parent neglects or abuses his or her children and the other parent brings this abuse or negle! ct to the courts, that not only is the allegation not going to be believed, but the abusive/negligent parent is likely to get full custody of the children just for the asking.

It is a terrible system, one which punishes responsible and concerned parents for trying to speak up for their children's deepest needs and rights. The family court system in CA is not designed to care about children's rights, safety, etc. It is all about looking at children as property of the parents, best to be divided equally among the parents.

I really recommend that any parent in your situation read Mary Anne (sp?) Mason's book ''The Custody Wars,'' in which she documents the ways in which family courts have shifted in their perspectives and how in a vast majority of cases children's lives are devastated by a system which believes that custody is best split evenly unless one parent can be shown to be a real threat to the children (and believe me, the courts do a terrible job even looking at police and welfare workers' reports actually documenting abuse and neglect of the children in custody disputes).

I encourage you to give yourself full credit for being the caring and responsible parent of your child, to keep an eye out for any warning signs of anything more serious, to keep a log of times when your child is unable to keep up with schoolwork due to the other parent's lack of involvement, and to build the best possible support network around yourself and your child. Make sure that you have fun with her, too, that you're not just spending all your together time helping her catch up on homework!

I hope that things get better for you but I truly discourage you from petitioning for custody modification at this time. It could really be devastating to you and your child. been there


Good for you to be concerned and involved with your daughter's academic development! Showing interest is so important to a child's feelings of self-esteem and security, even aside from skills development. Some questions for you, Sam: If you and your ex have 50/50 joint custody, don't you have a ''parenting plan'' in place? Usually in the custody determination process, a court-approved mediator helps to work out a detailed plan (if the parents can't or don't on their own) that can certainly include specific agreements around providing a supportive environment for studying and helping with homework. If you don't have a formal ''parenting plan,'' you might consider asking your attorney, or the court's family legal services, to help you and your ex to arrive at one.

Consistency and routine is key; Mom's house should not be any different from Dad's house in that respect. Can you try to enlist your ex in creating a more structured, regularized routine for your daughter? Might Mom herself feel threatened by academics? Does she need to be assured that all she needs to do is to provide an encouraging environment, time, space -- not ''do the work'' for your daughter? Good luck with this. I'd like to hear how things work out. Concerned co-parent


These types of issues require that both you and your ex are willing to work together in your child's best interest. When my ex and I weren't able to do this, we went to coparenting counciling. This seems like the only way for us to be able to resolve issues. If your ex refuses to do this, you can go back to court to amend your custody agreement, and require counciling. However you manage to resolve your issues, the most important thing is that your child not get caught in the middle. That can be more damaging than a lack of academics. Good luck! anon.
I, too, have 50% custody of an 8-y-old. And her dad quite often forgets to help her with homework, practicing spelling words, class projects, etc., and forgets things like her lunch or to bring back her library books. When she first started kindergarten and this problem came up I tried talking to him about it, but it went nowhere and just led to heated arguments.

So I gave up on my ex, and my daugther and I have found ways around the problem. In kindergarten, for example, she decided to stop bringing library books to his house because she knew he wouldn't remember to take them back. I didn't even know she'd done this until I overheard her telling my mom. At the time it made me incredibly sad, but now I realize this was a way that she chose to take control of the situation, which I think was an empowering thing for her.

She also brings all her homework to my house to do since she's learned that at his house, it just doesn't usually get done. (Even in intact marriages, there's often one parent who does most of the homework with the kids, so I guess it's not surprising that this problem comes up in a divorce--but without two full-time parents the system breaks down.)

I often call her when she's with him and quiz her on her spelling words, or remind her to bring back her homework or field-trip form.

It's hard on my daughter, no question, but she's really impressed me with her ability to deal with this problem and I like to believe that there are some positive aspects to her having figured out (with my help, though not via any direct discussion) how to manage. The older she gets, the more responsibility she takes on herself to compensate for the lack of support in this area from her dad. Her teachers help, too, since they usually figure out a few months into the school year who's doing it with her. This year my daughter told her teacher directly that her dad is a ''forgetting dad'' and asked her to give important papers to me.

It's certainly not ideal but we're getting through, and she does very well in school. The best part is that it eliminates ongoing arguments with her dad, which is a blessing. I envy divorced people who can work productively with their ex-spouses --for me, this kind of discussion rarely goes well so my daughter and I have taken an alternative path. Good luck to you, and I hope you find your own path. Sympathetic mom


I want more custody but we don't have a formal agreement

Jan 2004

I have a complicated situation, and need some lay-persons', as well as professional, advice on the matter(s) at hand. I am a grad student with one child, who never married my child's father. My child has a medical condition that makes it ultra-important that we always have medical insurance, and as the state does not consider my graduate student stipend ''income,'' I continue to receive medi-cal for the child.

However, state law requires that parents provide kids with medical support, and our recent re-certification for Medi-cal required me to file an application for child support/medical support from the other parent. I have never obtained a formal custody order from the courts, opting instead for the more difficult, but more ''flexible'' arrangement of working out our child's schedule with the father. I have also never petitioned for child support from the father, who makes a lot of money (in non-dangerous but ILLEGAL, and therefore untaxable ways). He says he will never have to pay child or medical support because he will never hold a job ''in the eyes of the state'' --i.e., the state will never know about the money he makes... But, he does pay me about $100/month for expenses such as classes, lessons etc.

My daughter's dad and I never married--we separated when my kid was 4 months old. For the first two years of XXX's life, he paid me $2000/month to live on, so I could stay at home with the child. He saw his child every day for a few hours.

After those first two years, he continued to pay about $500/month for another year while I was a full-time undergrad, and earned the maximum in scholarships and fellowships per year at UC Berkeley. He began taking our child on overnights and, later, for two days at a time. I received free childcare from UCB because I was so poor, but of course he didn't pay anything to me (i.e., he benefited by my poverty by taking advantage of the free care I got because I was poor). For the past two years, he has paid no child support to me, but has had the child for about 50% of the time.

Most importantly, he has a WONDERFUL relationship with my child, who absolutely adores him. I have not taken legal action before because I feared that any action I took would be a detriment to their relationship (frankly, I think he has scared me into believing this).

Now that my child is entering grade school, I would like to parent full-time during the week because I am the parent who manages to maintain a regular routine for our child(i.e., getting to school on time and not at 10 or 11AM), and who handles all the administrative details (read: responsibilities) of life: I interface with schools, Medi-Cal, and the pediatrician & health specialists we need. Additionally, our kid really suffered a lot emotionally in the past two years because of so much switching homes--we no longer exchange homes mid-week for this reason, and it has been much better for our child emotionally and educationally.

Here are my questions:

1) Given the precedent he has shown for spending so much time with the child, will I have difficulty obtaining so much custody? I don't think he will willingly give our child up to me for that amount of time, but also says he will never show up in court (so I am likely to get whatever i want from the judge should it come down to it).

2) If I am awarded weekday custody, and he gets weekend custody, am I in danger of having to pay HIM child support? An online calculator said I might have to pay as much as $300/month because I make $27K a year and he reports no income...even if the child is with him only 2 days per week (!). He has made threats against me if I disclose that he earns income illegally, and I don't really want to get him in any trouble anyway.

3) If I get the weekday custody, can I petition for some weekends, too, so I can spend some free time with our child? I hate to only have my kid on days when I have to be at school...

4) If I get the weekday custody, am I then eligible for child support from HIM? Can the judge order him to get a paying job? Or will he just be able to shrug and say, ''Sorry, I don't have a job'' to the judge?(He has a Master's degree from an Ivy League school). He lives in the home of a relative and performs caretaking for that relative in exchange for room and board. Also, he does have a new baby, and is supporting the new baby and baby's mom in their own separate apartment.

So sorry for the long post--I really need some support and advice, as this is a complicated situation, and I can't find anything on the web that speaks to all parts of my situation. I really love my child, and worry to no end that my child's dad will go to jail, ending or seriously damaging their relationship. But I also need to be assigned primary custody so I can ensure my child's success and comfort in school, and in life, and am worried about the repurcussions of pursuing this. Your advice, support, and recommendations will be much appreciated. anonymous only, please


Your message is complex and there are many issues in conflict with one another, particularly your desire to have your child continue a relationship with a father who has had a share in taking care of his daughter but who is clearly manipulative and less than responsible.

In your place, I would do my very best to sever my relationship and my daughter's relationship with this man as much as legally possible.

You do not provide details about his ''illegal, yet non-dangerous'' livelihood. If the activity is truly illegal, it is not ''non- dangerous.'' There is the possibility that he will be caught, which would be agonizing for your daughter and end the financial support you need. But there is also his bad character -- he is engaged in doing this illegal activity because he wants to withold the money that rightfully belongs to your daughter and also wants to hold onto money that in part should go back and pay for the services he uses in society (schools, roads, etc. etc.) Even if he is doing something ''harmless'' he is (willfully, by your account) harming you, your daughter, and society. Is this a model for your daughter?

My father made under-the-table money in shady business deals when I was growing up. Some of these deals were harmful to the environment. At least he did contribute to my upbringing, but I have lost respect for him and worry sometimes that some of the money that hurt other people (and was stolen from others) supported me. One of the other men who was involved with the crimes was imprisoned, and when he got out, he blackmailed my father. A person on the wrong side of the law is always vulnerable to others of the same type. Judging from my own experience, a person involved in illegal activity, ''dangerous'' or not, is probably stealing at best and causing many other hurts as well. It's probably not fair, but I have less respect for my mother for sticking with him than if she had left him and struck out on her own. And in spite of this, I can't help loving my father. Don't put your child through more than she has to go through. Tell the authorities that you want custody because the father is committing crimes. anonymous, please


whatever you do about this problem, if you decide to let the courts decide be prepared for a VERY LONG wait like years and years. this is because usually marital/custody problems work themselves out eventually - people go on with their lives etc. so long waits are built into the system so courts work like a last resort as it is a very blunt tool for personal lives. slightly less blunt - you might consider arbitration if you and your X can't figure this out yourselves. if you do, I can give you a reference - someone who has been involved in family courts and arbitration for many years. if she can't help you, she might be able to point you in the right direction.

50/50 custody not working - I want to move away

March 2004

I have 50/50 joint custody of my 2y.o. with her father. During post partum the father filed for custody (full was his goal no less than half) fearing I''ll move back home out-of-town and not let him see our child. Letting him see and have a relationship with our child was never an issue w/me and is still not. We had other issues and disagreements in which we don't get along and really don't like each other; but trying to make our situation less difficult I decide to stay in the Bay Area and share custody to avoid having to go to court, hire lawyers, etc. With some help from a mediator we worked out a schedule and agreed to work out any differences or concerns we had. Two years later and dealing with constant fighting and hell (his family getting involved) I can no longer stand the stress, the lack of support, the misery they put me through. I came to the Bay Area to attend UCB to get a degree and move back home with my family. Instead, I dropped out of UCB, decided to work for a while, and try finishing school. Her dad would never move out of his mom's house to be near his daughter, therefore I couldn't be selfish with raising my child and choose to move back home knowing it would be A LOT easier with the love and support of my family. After all the disputes (some police involvement), exposing my daughter to things she shouldn't be around some being illegal, and no respect, making it more difficult for me when I attempted to finish school, I realize this 50/50 joint custody is not working. My choice now is to move back home but legally I can't just take off with my daughter, it would be kidnapping. So now he or I (I'm not sure of the difference?)have to file an order to change the current custody order if I want to move back home. Does anyone know what happens in this/ similar situations when it comes to deciding which parent gets to keep her. Being forced to leave my daughter in an unhealthy environment and raised with no sense of the importance of strong family values is what I fear can happen. I would not be able to stand being away from my daughter 6 months out of the year if courts decide to keep it 50/50. What factors do the courts look at to decide custody when a parents needs to moved away to provide a better life for their child. I gave living near my daughter's father a chance but it is not healthy, he should give moving to Los Angeles a chance, quit his habit, if he really cared to be around his daughter. I'm not trying to keep him away from her but I feel like a prisoner in which he threatens to take me to court and do everything to keep her. Any legal info. or suggestions would be greatly appreciated.


Did you say habit? Your ex has a substance abuse habit? If so, he perhaps has a record? I would, not only for your own motivation of wanting to move to LA, but for the sake of your child, do all you can to get full custody. This means laying out on the table the whole story about your ex-husband's substance abuse and the illegal aspects of what he is doing. IMHO parents with that kind of problems should clear them up before having custody. Does the law say different? daughter of an alcoholic
California is a state with a VERY strong belief in continuing and frequent contact with both parents. It is absolutely a FATHERS' RIGHTS state, no matter what the law might be worded as saying. If you try to move away and file for full custody in order to move away, be prepared to have ALL of the allegations you make about substance abuse, domestic violence, and any other illegal activities looked at as lies and fabrications designed to rip your daughter away from a loving and caring father, even if some of these things are documented by police reports. Family court judges around the country, and especially in California, are very prejudiced against mothers who try to protect their child from abuse and in 80% or more of contested custody cases involving allegations of abuse perpetrated by the father, judges turn over full custody to the father and sometimes terminate all contact between mother and child, based on the unfounded assumption that the mother is trying to ''alienate'' the children from their father. There are several recent and documented cases of fathers in custody disputes being registered sex offenders with criminal records of child molestation and still getting full custody when accused by the children's mother of sexually abusing the children, even with supporting police reports and medical documentation, not to mention CPS reports.

Please be very, very careful. Your daughter needs you. Consult an intelligent and experienced lawyer with a good track record of dealing successfully with the kinds of illegal activities you object to in your child's father. It's grossly unfair for him to hold you hostage here--he is abusing his power over you by threatening you, and it's all the worse that his family is helping to hold threats and fear over you. But please don't file on your own, and don't leave any written record accessible to him of intent to move, to file, or to try to limit his contact with your daughter. It would be very detrimental to you and your child if the family courts thought you were manipulating the situation in order to move away with your child. You really need competent legal guidance.

I feel for you and wish you and your child the best. anon


Don't confuse two issues in this case -- first, parental behavior that puts children in physical or emotional danger should always be sufficient cause for limiting or denying joint custody to the offending parent, as long the assessment is objective and free of the emotional entanglements in divorce. The threshold of proof should be objective, but not insurmountably high where the interests of children are truly at stake.

The second issue is the perception of inequal treatment of fathers and mothers by family courts and the mediators who serve them. While most of those who have first-hand experience would agree that the brief amount of time given to arbitrate cases leads to superficial review of the facts and automatic, inflexible judgements, opinions vary about the biases of the adjudicators, and anyone with strong emotional bonds with their children is apt to feel badly treated.

My own experience suggests that the assertion that local courts are father-biased to be laughable, but painful as that has been, it is a sample of one and I'm cautious of making a counter-generalization. I will say that despite a 50/50 custody agreement, being told pointedly that should I ever move more than 10 miles away I would lose custody (due to the inconvenience to my ex-wife), but that if my ex-wife moved out of the area she would not, struck me then, and now, as grossly unfair.

Consequently I believe there needs to be an appeal process to question the judgement (whether biased or merely overworked) of family court mediators, without fear of reprisal. In my case, under stress and fear and deep attachment to my children, I kept silent, and years later still regret leaving an unfair ruling unchallenged. A committed father


My husband and I (he a doctor and me a social worker)discussed this issue of 50-50 parenting, as well as one poster's advice. We are of the opinion that the advice given may actually be harmful in this situation, albeit not intended. He created the response, below, which I want to share with the original poster and the list. Current California law does, in fact, allow a custodial parent to move away without getting agreement or input from a noncustodial parent. When you have a truly 50-50 situation, the law is less clear. Hence a good attorney is really what is needed.

****Please be very, very careful. Your daughter needs you. Consult an intelligent and experienced lawyer with a good track record of dealing successfully with the kinds of illegal activities you object to in your child's father. It's grossly unfair for him to hold you hostage here--he is abusing his power over you by threatening you, and it's all the worse that his family is helping to hold threats and fear over you. But please don't file on your own, and don't leave any written record accessible to him of intent to move, to file, or to try to limit his contact with your daughter. It would be very detrimental to you and your child if the family courts thought you were manipulating the situation in order to move away with your child. You really need competent legal guidance.****

The person who wrote this advice is not being helpful. He/she has jumped to the conclusion that the father of this child is a criminal, and thus, is not entitled to be a parent to his child. All this will do is to raise the level of conflict between the parents and, indirectly, harm the child.

Modern social science has shown that, except in extreme cases, children of broken relationships do much better when they have substantially equal exposure to both parents.

There are guidelines in the Family Code which can be helpful in the resolution of such differences and still preserve the exposure of children to both of their parents. Differing lifestyles, unless clearly harmful, are not a sufficient reason to deprive a child of one of his/her parents.

The poster of the original request for advice should, indeed, find a competent and sensitive attorney and determine what her rights and obligations are as compared with the current legal canons. I can assure her that California is NOT ''absolutely a fathers' rights state'', otherwise we would not have the current situation where approximately 80% of the primary custodians of children of divorce are the mothers.

It is clearly ''in the best interests of the children'' for such children to have frequent and continuing access to both of their parents, even after the primary relationship between the parents has been ended. Ilene


Ex-wife not keeping agreement to move to where I live

March 2002

Help! I am in desperate need of perspective and advice. I have joint legal and joint physical custody of my daughter, however this agreement is currently in jeopardy because my ex wife (who is remarried) wants to move 100 miles away.

Here is my history: My daughter is 8 years old and since she was 2 I have physically had her with me half the time. Six months ago I moved closer to my job, (45 miles away from my daughter), making a gentleman's agreement with my ex-wife that she would soon make a similar move to the same area at the end of the six months. Therefore my physical time, for 6 months, changed to just the weekends and my ex wife has had primary physical custody.

My current problem: My ex wife did not make the move to the area I live in as agreed upon (albeit non-legally-binding), in fact she recently put money down on a house 100 miles in the other direction and is planning to take my daughter with her, regardless of my past, current and future relationship with my daughter. She does not want to negotiate or consider alternatives. She wants to limit my time to three weekends a month and rewrite our agreement. (without my consent - can she do this?)

My response: I will be moving back to an apartment right next to my daughter's school and reestablishing my joint physical time with my daughter asap. My ex-wife will still file a a 'move-away' and I will have to respond accordingly.

My goal with my daughter has been to be as much of an everyday dad as possible, make lunches and breakfast, complete homework, coach a team and attend PTA meetings. I could agree to just have her on the weekends and as much as possible in the summer and Holidays. However that is just not the same as living in the same community, being a native in her life rather than a tourist.

I am scared that I will lose the most important thing in the world to me, time with my daughter. Please, any advice is appreciated. anonymous


Regarding the father who fears he will lose joint custody because the mother plans to move 100 miles away: I am not a lawyer, and you should definitely see one. There are recommendations on the U.C. Parents web site. But I keep up with family law. In my opinion, you made a big mistake sacrificing real joint custody for only weekends six months ago. If by ''gentleman's agreement'' you mean that the weekend plan was not filed with the court, you should re-establish real joint custody, as per your most recent court order, immediately. The court may have a bias toward the living situation that your daughter is accustomed to. It may also have a bias toward accommodating the mother's move-away, if she can come up with a good reason. Does Mom propose that your daughter change schools or school districts? This may be disruptive to the child. Compare school (middle as well as elementary) test scores at http://star.cde.ca.gov/ Develop an argument for taking ''primary custody'' for yourself. The court may appoint a mediator, and mediators tend to compromise. Is daughter doing well in school? There's a danger to removing her while the parents are in conflict. a joint custody father
Your message is very dear to my heart because my ex-husband lives 200 miles away. I would move back as soon as you can to re-establish your court approved custody arrangement. I would also write a formal letter to your ex-wife stating that your move was only temporary and you are moving back to be closer to your daughter and to resume the formal agreement. Highlight all the things that you mention in your posting about being part of your daughter's day to day life. I have a provision in my custody agreement that prevents me from moving from a certain radius in the Bay Area (I have sole physical custody) but my husband can move, which he did. Your wife cannot re-write a court- approved agreement without a judge's consent. As long as you do not consent, she will have to go back to court to convinve the judge that changing the agreement is in the best interest of the child. However, more importantly is that somehow the two of you will have to find a way to talk about what is best for your daughter, because you this cannot be overlooked. It is extremely difficult and traumatic for a child to move away from school, friends, house, etc. and not see her father on a regular basis. When my ex moved away, my son was so upset that to this day (2+ years later) he blames himself and he goes to weekly counseling. He also hates the drive. He spends numerous hours in the car (oftentimes in very long traffic jams) being shuffled back and forth when he really should be spending this time playing with his friends or mom/dad. This is what is most important and also what the court will look at - not what is fair for mom or dad. If the two of you cannot work it out on your own, I would encourage you to find a good mediator before you do anything else. An attorney is helpful but very costly and they don't necessarily advise what is best for the child but what is best for the client, and you could end up with a nasty battle in which no-one really wins, certainly not your daughter. There are many good mediators in the Bay Area who can help you and your ex-wife to keep this out of court and come up with a plan that works. Good Luck J

Husband wants custody but I want to move

It's time. A year ago I asked my husband to move out. I was finally strong enough to do something drastic about the (some) physical abuse and (lots of) emotional/verbal abuse; now that I had a child (one year old) I had more to think about than my own welfare.

Although my husband can fully admit (and still gets furious about) the abuse his own father inflicted on his mother, he cannot see that he has treated me in many of the same ways; although his mother chose to live with a husband like that, I refuse to live that way.

During the past year, my husband had lots of time to think about things, but he still thinks he was a good husband and that I have nothing to complain about, despite the obvious and not so obvious abuse he inflicted on me. To be fair, in some respects he was great to have around the house. But, I can't live with a man who physically and verbally abuses me and at the same time says he loves me. He's known for a decade that I've been very unhappy and why but has never worked at changing that.

So it's time for a divorce. Trouble is, he's going to want custody (full or maybe only partial) of our 2 year old. I am trying to finish my Ph.D. in December and have taken a job offer far outside of the Bay Area (where we both now live) and so will be moving with my child at the beginning of the new year.

I need a good family/custody lawyer for 1. some immediate advice, and 2. our divorce.

The other trouble is, he (and his mother) has lots of money and I have very little.

Please, if anyone has any advice, e.g., good lawyers, cost, similar experiences, or any other pertinent information, I would appreciate hearing from you. Unfortunately, there are no police reports of the physical abuse, but others know about it.

Particularly and immediately, I need to know what the (possible) ramifications are when one spouse (that's me) needs to move away (to get a job after many years in grad school) and is going to take the child with her. For example, if I move away with our child while we are still only (informally) separated, can this be construed by my husband or his lawyer as kidnapping, putting me in jeopardy of later receiving primary custody legally? Many thanks in advance for sharing your experiences.


Based on my very limited experience, here are the issues I see facing you:

The courts do not look kindly on one parent moving away from the other when a minor child is involved. "To get a better job" is not a sufficient reason to break up a family, in the eyes of the court. You are expected to take a lower standard of living, rather than keep your child from seeing the other parent regularly. If there were no abuse in the picture, this could cause you a big problem. However, since there is abuse of yourself, and therefore potential abuse of the child, this may be mitigated.

In our case, the abuse (some physical, lots of emotional/verbal, and neglect) was documented by the police. So that was easy for us. You want to find anyone you can to bolster your case in this area, since this will be the most important thing you can say to keep your child with you, and your husband from gaining sole custody. ANY documentation you can come up with is gold for you.

On your side is the fact that the child is "of tender years." There is a tradition of awarding custody to the mother when the child is under 6 or so. Generally speaking, there has to be documented abuse to remove a child from the care of the mother when they are small. So it is extremely unlikely that you will lose your child altogether. However, the courts still consider that the best solution is one where the child gets to have ongoing contact with both parents. Some sort of shared custody arrangement is highly sought after by the courts.

I can't speak to the issue of kidnapping, so I will leave that to others more knowledgable. As I mentioned above, feel free to e-mail me, and we can talk. Good luck!


While in college, I worked for a legal clinic which assisted residents of a battered women's shelter. The clinic was located in Southern Alameda County, therefore, worked according to Alameda County standards.

I would say that one very beneficial aspect to bring to your case, regardless of who your attorney is, is to document times,dates, places, witnesses, etc. of every violent incident you can remember. While requesting a restraining order for our clients, the judge would require the most recent event of abuse, the first incident, and the most violent. Yet, when it comes to working out custody and divorce situations, the more documentation, the better. If you have friends who were witnesses, ask them to refresh their memory of past events. It is unlikely that since your husband is having difficulty facing up the abuse, that he will remember events as exactly as you will. Violence can come from within a rage that the abuser often does not remember.

It is a difficult situation, but stay strong, and have faith. I realize that going against your husband, his mother, and their money can be intimidating, but the case will not be based on who has more money. The case will be built on the welfare of your child, and with your strength and letting the truth be documented, you will have a solid case to build on. I wish you much luck.


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