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Why was my spouse awarded Sole Legal & Joint Custody of our 2 children? When I was served, spouse requested Joint Legal Custody?

Ventura, CA |

I was served FL100 Petition of Marriage from spouse. On this form she requested Joint Legal Custody & Full Physical Custody.She moved out of our home & used funds from her trust to rent a new home.I responded & requested court fees be waived ($650) b/c I went thru savings paying mortgage, home bills, hotel costs living, etc. Court denied my request to waive fees, so I understand its as if I never responded.No other court dates were ever scheduled to attend & no additional filings were made other than initial FL100. 3 mos later I received a final judgment granting her SOLE Legal & Physical custody with 23% visitation to me. Can they grant her that without filing dads unfit parent, etc? We split custody 50/50 since separation and verbally agreed to 50/50 after divorce as well.

Attorney Answers 3


  1. Best answer

    It would appear on first glance that your due process rights have been violated since your parental right to joint legal custody was taken away from you when they granted “sole” legal custody to your ex, but no one ever gave you notice of that consequence. I would recommend that you consult with an experienced local family law attorney to explore setting aside the default judgment on a constitutional basis. You did not mention when the default judgment was entered and there are time limits in filing motions to remedy the situation and you should not wait another minute. I also recommend contacting the ex and advising her of your intentions with a goal towards resolving it informally before motioning the court. . If you have found this helpful and/or the best answer, please relay that information to the attorney by checking on the appropriate box below. It is greatly appreciated. Thank you and best of luck to you.

    Please note that this answer does not constitute legal advice, and should not be relied on, as each situation is fact specific, and it is not possible to evaluate a legal problem without a comprehensive consultation and review of all the facts and court pleadings filed in the case. This answer does not create an attorney-client relationship.


  2. Clearly other "papers" were filed, as there could not have been a judgment without facts (and filings with facts in them). As to your due process rights, you CHOSE not to appear. that said, legal custody has very little meaning and deprives you of no tangible thing whatsoever.

    And the bottom line answer is yes "they [can] grant her that without filing dad is unfit parent, etc.". The visitation time is about the child, and not fitness of either parent.. frankly if you wanted flexible coparenting you should have stuck with ADR and agreed on it all. now you have the wonderful opportunity to live your life with the nice judge in the mix, for possibly a decade or more.

    Who said divorce ain't fun?

    Ms. Straus (aka Carroll) may be reached at 800-400-8978 during regular business hours, Pacific Time, or anytime by email at: ECSEsquire@AOL.com. All of Ms. Straus’ responses to questions posted on Avvo are intended as helpful information based upon the facts stated in the question, and are not to be relied upon as a final legal opinion. It may not be what you wished to hear, and it does not create an attorney-client relationship. Ms. Straus is licensed to practice law in California. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state, and retain him or her. Me Straus provides “unbundled” services if you need specific assistance with a specific issue.


  3. I agree with the other two attorneys. Either your due process was violated or other legal papers were filed giving you notice.

    Maryam Atighechi is a family law, real estate and civil litigation attorney in Sherman Oaks, CA. 310-498-1057. Please be advised that although Ms. Atighechi is an attorney, the comments posted does not constitute legal advice. You should not rely on any advice or suggestions written and seek outside, independent counsel. An attorney-client relationship has not formed by reading the post.

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