My ex has the girls for the school year, I get them summer and other vacation times during the year. We have 50/50 custody. I live in Wa he lives in Orange, CA. We have all the orders outof California. I know I have to file there. What are my chances of getting my girls? Their dad is having a hard time driving, (he shouldn't be) he isn't allowed to be alone in the house per the doctors. Basically his 50% he has to rely on his mother, he physically isn't able to care for them. My girls do not want to see him this way either. What should I do?
I do not think the Courts would entertain an emergency order for custody absent a showing of immediate and irreparable harm to the children. However, you should file ASAP an Order To Show Cause for modification of custody. Given his medical condition and inability to care for the children, you have a basis to modify the custodial order. Because it would involve a change of residence out of the State, this could turn into a lengthy process because of due process rights and other rights he has under California law, so I would file the OSC as soon as possible. This is a very complicated area so I would encourage you to find a certified family law specialist in the Orange County area. If you have further questions, you can contact me at 949-502-4400 or my website has additional information regarding move aways and custody modifications: www.ocdivorce.net. Good luck.
If he is driving without a license and unable to care for himself, I think it would be appropriate to file an ex parte. You should speak with an attorney who can discuss the situation in more detail regarding what he has, why he can't drive, etc. I know you are worried about kicking him while he is down, but there are ways you can allow him regular contact without being there when he is having a bad episode (many terminal illnesses have good and bad days). I offer a free initial consultation, as do others. For further information, visit http://www.ellifritzlaw.com
Since legal advice must be tailored to the specific circumstances of each case, and laws are constantly changing, nothing provided herein should be used as a substitute for the advice of competent legal counsel.
First, let me say that California continues to have jurisdiction. You need to file in California, in the county where the existing child custody order originates from.
In order for the court to grant an ex parte request, there must be irreparable harm. A change in custody is very rarely granted on an ex parte basis. You may wish to file an ex parte application for an immediate change in custody with an alternate request for an order shortening time in order to have the matter heard as soon as possible or that the court allows. The court can also do an expedited custody investigation with the mediation department to determine if the children are in immediate danger. That typically takes 2-3 business days.
This case is extremely difficult. On the one hand, the court needs to balance both parents’ equal rights to custody. In adjudicating custody, the courts may, and should, consider the impact of a parent’s health or medical condition on the child’s best interest. Custody cannot be judged solely on the parent’s physical or mental disability. It is determined independently under the totality of the circumstances. In the Carney case, a 1979 decision, a gravely disabled parent was awarded custody because of the emotional bond that that parent had with the children. The court must determine, based on all the evidence, whether the parent’s disability will in fact have a substantial and lasting effect on the child’s welfare.
Clearly, if the father’s disability jeopardizes the safety and welfare of the children, namely while driving, the court should and will take that into consideration. Likewise, custody is for the parents, not for non-parties such as the grandmother. The courts will also favor mother over grandmother.
This is a very difficult case. You did not disclose the ages of the children. But, the children’s preference is governed by Family Code Section 3042. A child’s preference over the age of 14 must be considered. Younger children’s preferences will be considered if that child is of sufficient age, maturity, and intelligence. Needless to say, your case is complex. You may consider an expedited custody investigation through the County of Orange, a private 730 custody evaluation through Evidence Code 730, or Minor’s Counsel to determine the preference of the children.
Your case has many difficult layers. I hope this was helpful.
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