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Linda Calderon Garrett
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Linda Garrett’s Answers

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  • Will status quo be enforced during the custody battle?

    My ex and I had 50/50 custody for 2 years. After the two years, i agreed to a temporary change of custody based on my financial constraints. About 2 months ago I began making more money and rescinded our temporary agreement (the language of the ag...

    Linda’s Answer

    You reference two key phrases--"status quo" and "custody battle." My two cents here is that "status quo" normally presumes a reasonable period of time; and, "custody battle" usually presumes things are constantly changing between the parents. The usual scenario in a "custody battle" is that the parents rarely agree about anything--even visitation issues. Statistically, a judge will order "status quo" especially if one parent is asking for yet another custody evaluation or mediation and the current custody arrangement is in the child bests interests. Statistically speaking, courts tend to maintain the status quo unless one party can show that it would be against the child's best interests--especially when parents are "battling" about custody issues.

    I agree with my colleague. If you don't have an attorney, it's a good idea to at least speak with one. If you can't afford an attorney, then maybe you might want to consider some legal coaching--which is an excellent alternative to traditional legal representation. Below is a link about coaching services which is a form of unbundled legal services.

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  • Would a non-custodial parent's lack of involvement in decisions for child warrant revoking of his legal custody rights?

    We share joint legal and physical custody of our 4-year-old child, but our child spends just two weekends each month with father. Father has not contributed in making any major decisions about our daughter nor has he made efforts in appearing at ...

    Linda’s Answer

    The judge's review of a party requesting to modify a custody order from joint legal to sole legal custody is predicated on the "best interests of the child" standard. Under this legal standard, the court will pretty much consider anything and everything that affects a child's best interests. The examples you give are but a few facts that the parent would present to the court for consideration. Based on what you wrote, however, I don't see how dad's behavior has adversely affected the child's best interests. The parties don't need to like each other to jointly-parent a child. Where it becomes a problem is when one party is interfering with the other parent's parental rights.

    This area of law is very complicated. This Avvo forum is not the place to get a proper evaluation of whether or not mother should return to court on custody issues.

    The fact that father has been unemployed for "close to a year" is something that mother could return to court on. Mother could ask the court, for example, to issue "seek work" orders against the father for failing to work and provide for his child. Also, if there is an order for child support, it is important to note that the child support "arrears" never go away--that just keep adding up. So, when father returns to work, mom can return to court and ask the court to include payments for both future child support and past child support (arrears).

    Sounds like mom may want to speak with an attorney--even if for a consultation--to determine whether or not it is worth of time and effort to return to court for reconsideration of the custody and support orders.

    As a courtesy, I am attaching a few links relating to factors that a court considers when issuing custody orders. Good luck!

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  • How do I get my children back

    Both my ex and I have joint legal and joint physical custody. We had been sharing our golden 50/50 time until recently were he decided to contest it. I wasn't aware at the time last year that I had agreed to visitation hours and now the judge has ...

    Linda’s Answer

    Statistically speaking, most extreme legal outcomes at a court hearing are the direct result of a person not having legal representation at their court hearing. Based on the limited facts you provided, I would guess that you were such a person. If I am correct, I would suggest you start with speaking with an attorney--to determine whether or not you have sufficient facts to request a modification of custody/visitation/support. For instance, if your hearing was last week, it may be too soon to return back to court. On the other hand, if it has been several months and you have sufficient facts to prove that the current situation is not working out for the kids . . . and is against their best interests, then you may have a fighting chance to return back to court.

    If money is an issue for you, then also note that some family-law attorneys also provide coaching legal services for those parents who cannot otherwise hire an attorney to represent them in a court of law. Coaching services are the next best thing to hiring an attorney. For example, with a little coaching, you may be able to change things around! Good luck!

    Good luck!

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  • W a 50/50 can the other parent pull the child from school and taken to another state and be tutored during the time?

    we both have 2 weeks each he is working in another state and is telling me he is just going to pull her from school over the next 3 months and have her not enrolled but rather have a tutor at a private school there while missing school here in CA....

    Linda’s Answer

    It appears you have not one, but two legal issues that need to be resolved. The first has to do with joint legal custody. Under this concept, both parents are given joint legal authority to make decisions regarding a child's welfare--to include the schools they will attend and the types of schooling they will receive. It appears your ex husband is attempting to circumvent your legal rights on this issue--which he can't do if you share joint legal custody. If you and your husband can't reach an agreement on the type of education your child will receive, then the issue needs to be brought to the court's attention by the filing of a motion to modify custody for purposes of determining whether it is in your daughter's best interests to change legal custody from joint to sole. The second issue is known as "move-away." This term relates to to the situation where one parent wishes to move a child a distance that will result in a disturbance to the status quo to the child's best interests. Here, wishing to relocate the child to another state and change the schooling from a school to a private tutor would be disruption to your daughter's routine and against her best interests (and your legal rights). The second legal issue that needs to be resolved between the parents, or resolved by the court, is father's desire to "move away" with your 8-year old. If you, two, can't reach an agreement on this issue, then the motion request type for dad to file is a "move-away" motion. If you filed, instead of dad, then the requested legal relief is an injunction--preventing dad from removing your daughter from her home state and current school. It appears that time is of the essence, thus, I encourage you to promptly speak with a qualified attorney to discuss your matter. Note that the only way father can leave with your daughter is if he has your written consent, or he has the court's permission. Period. No exceptions.

    Finally, I am attaching two l links for your leisurely reading that discuss custody and move-away issues. They are two blog series intended to educate the reader about what the court's look at when determining custody issues and move-away issues. Good luck!

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  • Can I relocate without my child to another state during a divorce and custody battle because of a new job opportunity?

    I am filing for divorce from my soon-to-be ex-wife and for sole legal and physical custody of our 5 month old son. I am currently in the process of relocating from Torrance, CA to Colorado Springs, CO, but of course am not going to take my son wi...

    Linda’s Answer

    You now have a third attorney stating that the law does not prohibit YOU from leaving the state. You are also correct to state that your child cannot move until the custody issues are determined. I wish to echo my colleagues statement that you should speak with an attorney before relocating because you want to ensure you understand both the pros and cons and leaving before the custody issue is determined. If you wish further information about custody and move-away cases, click on the links below They are both blog series. Happy reading and good luck!

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  • Custody questions

    My ex husband and I have joint custody. I have not had any rights taken away from me at all. At the time of our separation I had been a stay at home mom supporting his military career. .. never really holding a real job. That being said he was g...

    Linda’s Answer

    My colleagues are correct to say that you should seek legal assistance. I am attaching some links regarding move-away cases and custody cases so that you will have more information to consider when speaking to an attorney. As stated by one of my colleagues, it is important to determine if there are existing orders in place as the most current order regarding custody will have an affect on how a court determines future custody issues--esp. as they relate to move-away cases.

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  • I am getting a divorce in California and preparing an argument for 4320 factors to secure spousal support.

    I was not a victim of a " domestic violence" per se but my spouse hid from me the fact the he was homosexual prior to marrying me ( I have med records confirming it). Our sex life was terrible, yet he blamed me and I did suffer sexually and emoti...

    Linda’s Answer

    The court can consider "4320 factors" (Family Code 4320) in both temporary support and "permanent support." While, usually, the Court will assess the factors of "need" and ability to pay" in temporary support cases, the court can consider the 4320 factors as well. You did not indicate whether you were seeking temporary support or permanent support. If seeking temporary support, you may have a strong case if you can show you "need" support and he has the "ability to pay"--and not have to use the "domestic violence" argument (FC 4320(n)).

    I am also attaching a few links on some material you want to read about this issue. Good luck.

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  • What are my chances of being granted physical custody?

    I have a 5 month old. I have provided her financial support, a stable home, and in home daycare. Her father filed for custody and support. He has provided minimal financial support and only recently got an apartment after having lived in his car a...

    Linda’s Answer

    As mentioned from some of my colleagues, the court will use the "best interests of the child" test to determine custody and visitation issues. Also, keep in mind that if you and the father were never married, father has no legal rights. Period. So, unless and until there is a court order, Father has no say in what you do. For instance,. "I can't take my daughter to dinner with friends if he isn't going to be there" would be an example.

    If you wish more information of what the court looks at in determining the "best interests of the child" analysis, I have attached a blog article for you to read.

    In the event you cannot afford to hire an attorney, I encourage you to at least pay for an hour or two of their time to give you to tips on how to prepare your case. From what you have written, there are things you can do now to fully prepare for your case. For instance, you may want to produce some documents to support your claims about father's poor conduct the past few years.

    For your child's sake, sure hope the father grows up and matures. Good luck!

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  • I live in Calif. I have been married for 16 yrs. my husband purchased 2 homes before we were married, both homes are in both our

    names, and our incomes are combined to pay our bills including both mortgage payments, 1 home is now paid off, which is the home we live in, if i divorce this man what am i entitled to since my income was used to pay both mortgages.

    Linda’s Answer

    Real-estate purchased before marriage to which the community estate made contributions during the marriage, is, as I am sure you have guessed by now, a very complicated issue in divorce cases.

    Besides addressing reimbursement claims under the Moore-Mardsen approach, and getting an appraisal on the houses, other no-less-complicated issues may also include tracing issues and transmutation issues.

    Statistically speaking, when someone has owned a home for, let's say 16 years, there is a strong likelihood that not only has a large chunk of the mortgage been paid down since date of marriage, but also, there is a strong likelihood that the home(s) was refinanced (with the debt being in both the name of the wife and husband) and cash-money taken at time of the refinance(es).

    Thus, Under a transmutation theory, it's possible that the homes changed their legal characterization from "separate property" to community property during the long-term marriage of 16 years. Could the result be different in a short-term marriage of 1 or 2 years? Absolutely. However, because we are talking 16 years and you indicate that the home are now in your names--that time period and your name being on both homes could entirely change the game, my dear.

    Based on the facts you have presented, I strongly suggest you speak with an attorney on this particular issue as you may be talking about hundreds of thousands of dollars in lost assets if you don't!

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  • Is there a way for me to find out if my child's father is working? I haven't received any support since December 2014.

    I don't think my child's father is working but his wife is working & I don't think it has been mentioned in court that there was 2 incomes in the fathers household.

    Linda’s Answer

    I am responding to your question because there may be four additional questions/issues related to your question that you may want to consider:

    Question #1: why is father not working? For instance, did he voluntarily quit working or does he have a legitimate reason for not working? If the answer is that he has chosen to stop working and, as a result, has stopped paying child support, a person in your situation can file a motion for contempt of court--in father failing to work and failing to pay court-ordered child support. The forms for such a motion are FL-410 and FL-411.

    Question #2: Is there a specific amount that is court-ordered. (Your facts do not indicate whether father is paying support by court order or whether the payment is made voluntarily (without a court order)). If the answer is that there is a specific amount, and it is court-ordered, then you are entitled to "arrears" with interest accruing at the legal rate of 10% per year. This is important because father still owes the money whether or not he's working--and even if he resumes making the payments, he still owes you for the unpaid amounts, e.g. January and February 2015.

    Finally, in only rare exceptions, is the new wife required to pay child support. The exception is extremely rare--so I recommend you speak with an attorney if you think your case has some unique elements. In the majority of cases, wife #2s income will only be used in the DissoMaster guideline support calculations as it affects father's income-tax tax filing status.

    One final issue: if Father finds a show and is making more money than before, they may be a legal basis to request modification of child support based on father's higher income. For instance, assuming everything else is the same, except that Father now earns more money, new DissoMaster calculations should reflect that father owes you more per month in guideline child support.

    I think, at some point, it may be a good idea to speak with an attorney to get an overall assessment of your situation since there are several issues that you may want to consider as they relate to your set of facts.

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