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What chances to I have of full custody of our son when my husband was convicted of M DV and child abuse and a protective order?

Sacramento, CA |

My husband was arrested, convicted(plea deal) of DV, child abuse against our 16 year old, and violating a protective order. I have a criminal restraining order for myself and daughter, a civil restraining order for myself, our 16 year old and 8 year old. Now his attorney says they will be coming for custody of our 8 year old asap. This all happened about 5 months ago. I want to get full custody of our son and want to know my chances of this. Thank you.

Attorney Answers 3

Posted

First, i must say that I am sorry that you and your family have gone through so much turmoil. Regarding your question the best answer is to refer you to Family Code Section 3044. Wherein a rebuttable presumption exists against a person obtaining custody when they have a Restraining order or a Domestic Violence conviction, see the code for further analysis. While No one can give you a guarantee regarding the likelihood of success, It is very possible that FCS will look to the history of violence and be very concerned about your son's best interests if he were placed in the father's care. To ensure the safety of your children you want to be prepared for Mediation and the best way to do that is to consult with an experienced local family law attorney.

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Asker

Posted

Thank you for your comment. Our therapist says that regular mediation will be to traumatic for us as myself and our older chld have ptsd from what happened. The older child is so scared of Father that the therapist says that a mediation could traumatize further. So I'm not sure what will happen in that case. I also meant to put he was convicted of violating the protective order after he bailed out of jail, then rearrested and convicted of all 3 charges. I am hoping that all the evidence will show that our younger child is best in his home, safe with his Mom and sibling. I was just interested in the stats on a abuser like this getting very much time with a child. Especially when the other child is protected by a criminal protective order. Our younger child was not because the older child gave a statement to police and the younger child is so shy that will not speak about situations that occured for him or the abuse he saw. I am afraid of the Father's accusations, how much the court will weight that or just take the hard evidence in the criminal matter that I have. I know in court they can accuse of pas and I hope that they will see that I need to protect the younger child and it's not that case. Have you seen many abusers get much time with their children? Or would you say that the court tends to not do this? Thank you.

Jason Robert Sherlock

Jason Robert Sherlock

Posted

The focus of the court will be what is in the best interest of the children. If there is substantial evidence that he is abusive and a violent man, then the likelihood of limited visitation for him is greater.

Posted

You are in the better position for PRIMARY physical custody, given the facts you stated. But I have not heard yet what they are going to allege about you, and you haven't yet heard what they are going to allege either. You must ask yourself, "what is the worst thing(s) they could allege against me?"

As to you getting SOLE physical custody; certainly a conviction for child abuse is a big factor. But there are other factors including how long has each party has been in the child's life, your respective living situations and criminal histories, and other factors. You should seek an experienced local family law attorney who can question you about those things and help you find evidence to back up your facts and thereby put your best case forward in court.

Thomas Neil is a Sacramento attorney, with 20 years experience, representing clients in Sacramento, the Bay Area, and surrounding counties. Or, if you cannot afford full representation then Mr. Neil can instead write you the forms and declaration you need, help you serve them, and tell you what to say and you can go to court by yourself. A well written declaration by an attorney, supported by proper evidence, will GREATLY increase your chances of success in court. Our office takes credit cards.

Thomas A Neil
3224 El Camino Avenue
Sacramento, CA 95821
(916) 446-4153

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Asker

Posted

Thanks very much for your comments. I'm trying to choose a attorney now. I was looking at one but I'm not sure, he seems to think I should wait for my husband and his attorney to make the first move in the divorce and custody. My husbands attorney has been saying they are going to move forward for 2 months now and still nothing has been filed. I have no criminal history, I live in the family home we have that is right by the kids schools. I work from home so I am always with them. CPS found me for general neglect because I lived with a abuser and he was found for abuse. That is the only negative on paper about me is that report. Other than that, he is a convicted criminal of abuse on myself and a child. I'm really wondering if I should make the first move on this or if that is not a good idea? If I should wait for him to start this in court and see what he is going to say about me and what angle he is coming from. I would greatly appreciate that advice. I want to get it over with and this did just happen with his arrest and conviction but I have read it's best to stay out of family court as long as possible. Thank you.

Thomas Allen Neil

Thomas Allen Neil

Posted

It's difficult and dangerous to advise you further without a consultation to get all the facts. But, in general, if you do nothing and do not "make the first move," then the child stays primarily with you, and the longer that is the parenting pattern the more that becomes the status quo. And courts try to keep the status quo so your being the primary parent for a long time is good for you if they attempt to modify custody in the future. But, if you are hell bent for sole custody then you will need to take action first and file a motion for custody if they don't. Keep in mind that you currently have primary custody and there are no sure outcome when you go to court. And courts highly prefer the child having frequent and continuing contact with both parents so that works against your getting sole custody. Also, what your children say to the mediator about wanting to see dad or not can make a big difference but you cannot talk to the children about this before mediation because courts get very mad if you do, and parents are often surprised when the child tells the mediator in private that they do want to see the other parent. Thomas Neil is a Sacramento attorney, with 20 years experience, representing clients in Sacramento, the Bay Area, and surrounding counties. Or, if you cannot afford full representation then Mr. Neil can instead write you the forms and declaration you need, help you serve them, and tell you what to say and you can go to court by yourself. A well written declaration by an attorney, supported by proper evidence, will GREATLY increase your chances of success in court. Our office takes credit cards. Thomas A Neil 3224 El Camino Avenue Sacramento, CA 95821 (916) 446-4153

Asker

Posted

Thank you for your input, it's very helpful.

Posted

Terrible facts but common to many abused. Hire an attorney ASAP. You need a family law attorney so I suggest you pose this question in the family law PRACTICE AREA. Good Luck. Hope this helps?

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