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Noncustodial father sees mother neglecting the kids; knows of CPS investigations; knows that mother is in financial dire straits. How to change custody?

Your Question:
We are in CA we are the NCP with 30% visitation

the primary custody is with the mother there are 3 children, ages 2, 4 and 7

Due to this below circumstance, we filed for an ex parte hearing to gain custody of the children. We are fearful of the lack of supervision: ( btw..This ex parte hearing was denied. Apparently it was not enough to warrant an emergency hearing..)

while in her care, the 4 year old was left unsupervised at a park at 9p and broke his leg. Worse, NO medical care was sought until the next day when she called us to take him to the hospital.. The leg was completely broken

We called CPS. Unsure if hospital reported. There are allegedly other CPS reports on file. We do not know if this is factually true, but the probability is very high.

She has not maintained medical coverage, per court order. We now have a >$4,000 bill for the cast, ER, etc....

She lives with her sister who is using section8 to pay the rent.. Section 8 is not aware that she is living there. There are 9 children living in a 3bdrm house. CPS did bring this up in the report (per the mother who called us about this report)

We are only paying her $659 /mo in Child Support. There is no way she can move out on her own and pay for an apt and utilities etc. She is receiving food stamps though..

If we anonymously report to Section8 about her living situation, they will be evicted because they would not be able to pay the full rent. The reason we would report, is basically to force the issue...

My question is the following:

Do we stand a chance to gain primary custody at this point, or really lose a big portion of the 30% visitation if she were to move to L.A. (8 hours away, she has family there) she is currently blocked, via court documents, from moving more than 25 miles from the father..

Realistically, she can't live by herself and be self- supporting with the child support we pay..

Can she successfully petition the court to move away:

With the documented neglect?
She does NOT drive
She does NOT have a job (has never had a job)
She is unable to provide financially for the children

I cannot see how if she moves away it will be in the "best interest of the children" they will lose a lot of time with their father, and she really would be moving simply to have her brothers support her.

Can a custodial parent lose custody because she doesn't receive enough child support and continues to be unemployed?

Long, I know.. But thank you in advance.. I look forward to your response and will clarify what ever is not clear...

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My Answer:

If all that you're saying is true, and if the father's home doesn't have major issues or threats, then I agree that it's probably best for the kids to ultimately reside primarily with the dad.

However, I think you should spend a bit more time thinking about how to make that happen, and it may not happen as quickly as you would like. You've already been shot down at an Ex Parte motion to change custody, so either your attorney royally sucked (or the dad did, if not represented) or the judge is not extremely alarmed at this point. That tells you that you need to build your case on solid evidence, not on speculation or character assessment.

First, if the mother had court orders to provide medical insurance for the children, and if you have evidence of those court orders, I would suggest that your attorney or you send a very business-like letter to the mother. The letter would essentially say, "As the $4,000 bill is a result only of the mother's willful contempt of orders by allowing the child's health insurance to lapse, father is willing only to be responsible only for what the co-pay would have been. According to the lapsed policy, an out-patient Emergency Room co-pay is $75." Unless father has failed to pay child support (and hence mother couldn't pay for insurance), I don't see a court holding him accountable for any amount above what the co-pay would have been.

If the mother took the kid to the ER, then it's her bill. You won't have to worry about bill collectors or a bad credit mark.

Second, if you have valid court orders stating that the mother shall not move more than 25 miles away from father, then you simply expect those orders to be followed. If the mother moves more than 25 miles away, then she's in contempt. She would have to petition the court to modify that clause, at which point you've got a move-away case on your hands. If she moves and ignores that court order, then you may be able to try for another custody change, following a contempt hearing.

In California, there was an important Supreme Court case called LaMusga that occurred in 2004. It clarifies that while custodial parents have the presumed right to relocate the kids, so too must the court rule in a child's best interest at all times (i.e., where the relocation may be presumed in the best interest, barring other evidence). I think that case would benefit your situation, if/when the mother tries for a move-away. You may, at that point, take all the information you outlined and argue that a custody evaluation is necessary to assess at which home the children shall primarily reside. Your basis will be that there is a change of circumstance as a result of the the CPS investigations (especially if any are found to be neglect), the irresponsibility demonstrated by the mother, and whatever else you gather along the way. The move-away in itself is not a change of circumstance, though it would be relevant to point out that the father would likely be stuck with the burden of transportation as a result of the mother's pitiful finances and suspended license.

As to the Section 8 housing fraud, just let her dig her own hole. You know it's all going to come tumbling down anyway, so I would suggest staying at an ethical place. You did write me a subsequent note (not posted), saying that you were re-thinking along what I'm suggesting anyway.

The biggest problem with your proposed argument is this: you're speculating based upon reason, not evidence. The court cares about evidence of things that are happening or have happened. The court won't entertain your speculation about future gloom and doom, because the court knows that the mother may inherit $100,000, or may win the lottery, or may get a job, or may find a sugar daddy... or may fall on her face. But the court won't make a decision until any of those things happen.

So, you bide your time, documenting everything, and building your case. I strongly recommend you drop seventy bucks on Win Your Child Custody War by Hardwick. It's the most valuable thing you could have by your side right now, as it will guide you on how to gather relevant evidence to return to court and successfully argue what you already know is best for the kids. There's a link to learn more about the book on my Resources page, and you can buy it at Amazon if you want.

The thing is... yes, it may be best for the kids to move to the dad's home RIGHT NOW. But unless they're being molested regularly, starved, and locked in cages at night; you'll really have to build your case appropriately (i.e., appropriate to family law) to effect a positive change for them.

Good luck!


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