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
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.
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).
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).
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.
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  and change schools [3003/3083]
and there should be no need for any further hearings and your application
must be granted.
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.
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.
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