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I was granted sole physical/legal custody of my child 8 years ago with visitation in reserve, can my ex get joint custody?

San Bernardino, CA |

My child's father has been out of prison for 4 years now. Before that he has had a long rap sheet including multiple charges and convictions of drug possession and dealing, assaulting a police officer, and well the list goes on and on. I found out that he has moved in with his gf who doesn't have custody of her kids and I don't know why but want to find out. I recently stopped visits for my child to go over to their house because I seen a recent pic. of him and he appears to be on drugs again. In addition, he is not an active father in her life, is a complete dead beat, pays no child support. His mom is the one who calls and comes to get her all the time, never him. I want to know what his chances are if he were to take me to court to get joint custody and/or visitation of her?

Attorney Answers 4


  1. Joint custody is a rather meaningless phrase. Joint legal or joint physical? I would expect that if he can show that he cleaned up his act, he might get some time with the child. He has the burden of proof to allege facts that support changing the order.


  2. There are two different kinds of custody. There is physical custody and legal custody. In a family law context, “Legal Custody” is a type of child custody that grants a parent the right to make important, long-term decisions regarding their child or children. This may include aspects of the child’s upbringing including:

    Education
    Medical and dental care
    Religious upbringing
    Financial decisions.

    Physical custody is who the child lives with and spends time with.

    In your case, getting joint physical custody will be an uphill battle due to his past. n

    Legal disclaimer: The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of Massachusetts. Responses are based solely on Massachusetts law unless stated otherwise.


  3. It depends on a whole host of questions and answers that is difficult to get into here on AVVO. Nevertheless, as a general principal, his past doesn't necessarily preclude him from having a relationship with his child now.

    If there is an existing custody order in place, he will have to file an RFO (Request for Order) to modify the current order. The would have to show a significant change in circumstances since the last order warranting a modification. The judge will look at the totality of information and come to a conclusion based on what he/she believes to be in the best interest of the child.

    His paying or not paying child support usually is a separate issue and most likely won't impact his ability to have some portion of custody or visitation with his child. Also, regarding his girlfriend, it all depends on who she is, what type of a present and past history she has, whether or not she is a negative influence on the child, etc.

    Your best bet would be to consult with a local attorney and give them more thorough details for a more informed answer. I truly wish the best for you and your child.

    This AVVO Answer does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. Each case is different and not enough facts exist to formulate a proper and thorough response. To the extent additional or different set of facts exist or the hypothetical or scenario presented herein is different, the opinion or commentary of the Attorney might possibly change. Attorney is licensed to practice law only in the State of California and opinions are based solely on California law unless stated otherwise. For answers to specific legal questions, always consult with a licensed Attorney.


  4. Yes, your ex can get an increased custodial time share if he shows the court that he has changed his life. But it will be a long time (several months) before the Court grants him overnight visitation. California law presumes that children are better off with frequent and continuing contact with both parents.

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