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Joint legal and sole physical custody Mom needs help.

I am a mom in San Diego County. There are court orders for joint legal custody and sole physical to me. The old orders said I could move anywhere within San Diego County. I just changed our son's school to north county San Diego. I want to remarry, and have been living with my fiancée for 4 years. I believe the schools are better here. Our son's father is trying to force me to keep our son in the old school south of here, or to take custody. I would have to drive 70 miles for school drop off and pickup.

I have no money for attorney fees because my last lawyer had only a year's experience, and she upset the judge and now I am out $10,000. We have a hearing in 3 days. Please help.


Mellisa, El Cajon, CA


I am not sure whether you filed an Income and Expense Declaration before now but you might be prepared to submit one to the Court on the issue of attorney fees at this upcoming hearing:

Attorney Fees Question/Assuming There Are Any Further Hearings

While attorneys fees should be your second argument, assuming that any further hearings are set or you get the sense things are not going well, you do need to ask for an Order for the $5,000 in attorney fees - even if the issue was not raised in your moving papers, you are still entitled to make this request pursuant to Family Code section 2031(2)(b)(1) for the first time on Thursday. That section states 'an order for fees may be made without notice in open court ... at the time of the hearing.' Court has 15 days to rule. If it states in will rule later, ask that both parties be ordered to submit FL-150 I and E statements within 7 days.

You are requesting attorney's fees because the issues involved are some of the most complex in this area of the law (parent relocation), and you are entitled to be on a parity with Mr. Tr xxx, who has been able to retain competent counsel.

Specifically, tell the Court your request is also made under authority of Alan T.S., Jr. (4/2/09) 172 Cal.App.4th 238 and In re Marriage of Keech (1999) 75 Cal.App.4th 860. Tell the Court that you are in pro per but do not want to be, but that obligation of supporting the child from this marriage plus the financial burden of your other handicapped child, makes it impossible for you to obtain legal representation without an order that Mr. Txxxx pay these fees.

Move-Away Situation

1) Establish that the final, current order, is for joint legal and sole physical custody to you. Mr. Txxxx rights are for visitation only, but not custody, absent a modification of the current orders upon a showing by him of a material change of circumstances. Your move and the child's new school is not presumptively, without more, a sufficient change of circumstances to warrant a change of custody even assuming he asked for it (I don't know if he has).

2) As the parent entitled to the day to day supervisory control of the child per FC section 3007 (defines sole custody), you had a presumptive right to relocate. This is the same right codified in FC section 7501. You have custody; dad has visitation rights. (BTW, his visitation rights are not being negatively impacted by the move, by his own admission, since his objection only involves relative school ratings).

3) As to the joint legal custody label, this only grants each of you the rights under FC section 3003 (decisions regarding health, education and welfare) during your respective custody and visitation times. FC section 3083. It is does not obligate you and he to agree on schooling absent a court order saying you had to first, per 3083, and it must be specific and mention "schooling" (I assume this is not the case).

4) Even though you were not required to do it, you gave dad notice per FC section 3024 that you were moving north and changing the child's schooling. F's atty intimidated you into filing a motion for permission to make the move, when they probably were the one's obligated to file a motion to restrain the change, and so you have acted in good faith. This is particularly true given the court order from (the earlier date) stating you can relocate anywhere within San Diego County.

5) It is very important if their responsive declaration did not check the change of custody box, and if their paperwork only asks to restrict the change in schools - you need to be sure you are right about this before making the argument - BUT if they are not seeking a modification of custody, then you have the right to move [7501] and change schools [3003/3083] and there should be no need for any further hearings and your application must be granted.

6) Next, ONLY IF THEY'HE REQUESTED A CHANGE OF CUSTODY, then the next analysis is: That this is not a de facto joint parenting agreement. This not a Burgess footnote 12 case (which requires a de novo, best interests of the child hearing only where there is true parenting agreement). Here the timeshare numbers become important - you want him as low as reasonably possible without sounding incredible. This is a straight Burgess situation, and therefore you have the presumptive right to move and you do not need to show that the your move was "necessary" or even in good faith, except with the added benefit to you that Burgess involved temporary orders and so the court had to do a best interest of the child analysis, while your case involves "permanent" orders and so that is not a ground for an evidentiary hearing (best interests was previously decided in your favor and the question will be not be reviewed again absent Dad showing a change of circumstances).

7) Changing schools is not an adequate CoC as recently held by the California Supreme Court in Brown and Yana (2006) 37 Cal.4th 947. Here, like you, a parent with sole physical custody sought to move a much greater distance from the dad - Las Vegas. Dad's objection was that the schools in LV were inferior. He wanted an evidentiary hearing before the move would be allowed, and he sought a change of custody to himself if Mom moved anyway. The trial court correctly refused to allow an evidentiary hearing because the Father had failed to allege sufficient facts showing a detriment to the child by simply claiming the relative merits of schools. Courts won't step into that qualitative battle. Instead, F needs to show that you are attempting to frustrate contact, which clearly is not the case, or some other "detriment" in his responsive declaration. His failure to do so means he is not entitled to an evidentiary hearing.

8) Since he is not entitled to an evidentiary hearing, even though a mediation is appropriate in the next month, it would be improper for this court to issue any orders that restrain your son's ability to start school on 8/20/09 as planned.

9) Father has failed to meet his burden. You need attorney fees to retain competent counsel for any further hearings.

10) Finally, under FC section 3044 there is a rebuttable presumption that dad is not a fit person to be a joint custodial parent because of the DV orders.

I have written numerous articles explaining move-away cases and the process for relocating and opposing move-aways. Click here.

Best of luck on this. If you get a court order for attorney fees, hire someone!

Author: Thurman Arnold, CFLS


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