My estranged wife had our children removed from her care by CPS; then, she was subsequently incarcerated for nearly 2 years. During this time, I was awarded sole physical and legal custody of our 2 children by a DCFS judge and she was given court-monitored supervised visits. I also filed for divorce (attaching the J number to the divorce/custody declaration). Their mother was released from jail 1 month ago. She does not feel she should have to comply with the monitored visits only and has submitted a request through Family Court to gain joint physical and legal custody of our 2 children. She failed to mention the DCFS judgement in her court request. Is there any chance a Family Court judge will overturn a DCFS judgement based solely on the mother's request?
It is very unlikely that the Family Court judge will change what the juvenile court has done. If the juvenile court is not involved anymore then the family court will have jurisdiction. If, however, juvenile court is still proceeding, then family court will not act at all. You need to immediately file a response to her Request for Orders and reference the juvenile court's actions and why they did what they did. Attach their order. Also, you probably need to speak to an attorney.
She would have to prove a material change of circumstances.
Most appeals fail. To win on appeal, you must find a legal error that the Judge made. Even with the use of an expert attorney, courts of appeal frequently find ways to affirm a judgment. It is not enough to argue that the Judge might have believed a different version of the facts. To win on appeal you must prove that the Judge applied the law in an incorrect fashion, and that you brought the error to the court's attention before the written order became final as to the Superior Court (typically 60-days). A good appellate lawyer would probably file additional papers in the Superior Court before making an attempt at reversal in the Court of Appeal.
Once the dependency case has closed the family court would be the proper venue for mother to attempt to change a court order. The family court can access the dependency court files to review the petition and why the visitation/custody orders are as they are. If you do not appear it is possible a court could rely on mother's assertions. I would recommend finding a lawyer in your area to make sure that you and the children are well represented.
In California, when a juvenile dependency case ends, and the court issues custody orders, those orders are usually put into writing using juvenile forms (JV-200, 205). If so, the orders are assigned a family court case number (if one did not previously exist) and are placed into a family court file. They are permanent orders. To modify the orders, the family court would hear the request and apply the same standard that family law requires in order to justify changing a permanent order.
If orders were not prepared, but were issued by the juvenile court, they should be included with the written findings and orders made when the juvenile case was dismissed by the court. Juvenile reports and records are confidential and protected from disclosure under CA WIC 827. If you want to disclose them, you would be to required to either file a petition for disclosure in juvenile court for the orders to be shared for purposes of the family proceeding or you may be able to file a request with juvenile court for the orders be issued on the required forms and placed into the family court file.
You should find out whether orders were issued, and speaking with a dependency attorney to navigate the options would probably be very helpful. You don't want the court to go without the information before considering new orders.
Your wife will have to show a substantial change in circumstances to modify the DCFS Exit order.
When you file your response, you need to attach the exit order. You should run a criminal check, and attache the criminal cases (which show the case history) to your response. You should ask for monitored visitation, and suggest a professional monitor (include the monitor's name/address/contact infomration/costs).
You can also ask for reunification therapy between children and mother PRIOR to any actual visitation. Since she has been gone for some time, this may be the first order of business.
The FAmily Law Court will not have knowledge or access to the DCFS case. You can order a case copy. Also, you canorder the DCFS case transfered to teh Family Law Court, so that the Judge can review it prior to the hearing. The FAmily Law court will not do this for you, but you yourself can do it.
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.
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