When issues of custody and visitation are involved and you feel there is going to be a fight wherein your ex may attempt to wrestle custody/visitation away from you I would recommend you retain an attorney. The implications of such a dispute are dire and once a judgment is entered regarding custody/visitation such judgments are often difficult to remove/overturn/modify.
The court always evaluates, when making a determination regarding custody/visitation, the best interests of the child which are laid out in California Family Code section 3011. If your ex is attempting to restrict your custody and visitation with the child he will probably attempt to prove that it is not in the best interests of the child for you to have an influence in the development of the child. While this is often quite hard to do and requires a showing of some pretty serious negative circumstances (especially without the assistance of an attorney) it is not impossible. I would seek advice from an attorney to ensure you are properly prepared to argue against whatever circumstances he is preparing to raise.
This response is intended to be a general statement of law, should not be relied upon as legal advice, does not create an attorney/client relationship and does not create a right to continuing email exchanges
As a preliminary matter, please note that I do not practice in your state. Laws vary from state to state, which is why it is advisable for you to contact an attorney in your local area. My response offers only general information and should not be used as a substitute for legal advice from an experienced family lawyer in your state. The issue of what constitutes an unstable environment is a factual question that will depend on the individual facts in each case. When making a custody determination, judges are looking for the parent who is best able to meet the child's needs. This may be expressed in terms referred to as the "best interest of the child." In custody cases, it is presumed that a parent seeking custody is able to meet the child basic needs, which include food, clothing and shelter. However, judges are also sensitive to the moral environment that a child is being raised and will deny custody if there are factors suggesting harm or danger to the child. When making a best interest decision, judges will examine a parent's ability to assess the child's needs, a parent's willingness to allow contact with the other parent, the preference of the child if the child is of appropriate age, and a myriad of other factors. Although the limited facts provided are limited, I will note that unfitness is triggered by a finding that a parent is emotionally unstable, abusing drugs, and or alcohol, and is in general unable to meet the needs of the child. I recommend that you contact an attorney in your area to provide guidance.
This response is only intended for informational purposes and is not intended as legal advice or as a substitute for hiring an attorney in your state. Further, by sharing this information, it is in no way intended to establish an attorney client relationship with the reader.
California Family Code section 3011 sets out what the Court is to consider regarding the BEST INTERESTS OF THE CHILD. This code sets out:
1) The health, safety and welfare of the child
2) Any history of abuse --by one parent against the other or the children -- or others
3) The nature and amount of contact with both parents
4) The habitual or continual abuse of alcohol or prescribed controlled substances
Family Code section 3046 provides (in part) that if you have relocated because of the pending divorce and you make efforts within a short period of time to secure custody/visitation with your children, then the Court will not consider the absence from the family residence as a factor in determining custody.
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