Do We Even Stand a Chance? Worth the Risk?

[momof7]

We are in CA
we are the NCP with 30% visitation

the primary custody is with the mother
there are 3 children, ages 2, 4 and 7

Due to this below circumstance, we filed for an ex parte hearing to gain custody of the children.  We are fearful of the lack of supervision:  ( btw..This ex parte hearing was denied.  Apparently it was not enough to warrant an emergency hearing..)

while in her care, the 4 year old was left unsupervised at a park at 9p and broke his leg.  Worse, NO medical care was sought until the next day when she called us to take him to the hospital.. The leg was completely broken

We called CPS.  Unsure if hospital reported.
There are allegedly other CPS reports on file. We do not know if this is factually true, but the probability is very high.

She has not maintained medical coverage, per court order.  We now have a >$4,000 bill for the cast, ER, etc....

She lives with her sister who is using section8 to pay the rent.. Section 8 is not aware that she is living there.  There are 9 children living in a 3bdrm house.  CPS did bring this up in the report (per the mother who called us about this report)

We are only paying her $659 /mo in Child Support.
There is no way she can move out on her own and pay for an apt and utilities etc.  She is receiving food stamps though..

If we anonymoulsly report to Section8 about her living situation, they will be evicted because they would not be able to pay the full rent.  The reason we would report, is basically to force the issue..

But it will force the issue with her..
We will not allow our children to sleep in the streets.

My question is the following:

She does have brothers in L.A. (which is 8 hours away from us)
she is currently blocked from moving more than 25 miles from the father..
Realistically, she can't live by herself and be self-supporting with the child support we pay..

Can she successfully petition the court to move?  Even with the documented neglect?

She does NOT drive
She does NOT have a job (has never had a job)

Can a father who has 30% visitation, regularly pays child support, provides all of the transportation... be forced to now make an 8-hour trip (well 16-hours round trip) ?  because the mother chooses not to work?

Long, I know.. But thank you in advance.. I look forward to your response and will clarify what ever is not clear...

[socrateaser]

>Can she successfully petition the court to move?

Maybe.

>Even with the documented neglect?

If the court believed that the neglect was severe enough to warrant action, the court would act, regardless of whether she wanted to move, so this is irrelevant, at the moment.
>
>She does NOT drive
>She does NOT have a job (has never had a job)

Also irrelevant.

>
>Can a father who has 30% visitation, regularly pays child
>support, provides all of the transportation... be forced to
>now make an 8-hour trip (well 16-hours round trip) because
>the mother chooses not to work?

If the mother is granted a move, the court will adjust transportation costs in consideration of the additional expense to the NCP. You can ask the court to impute income to the mother, on the basis that she has the (1) ability to work, (2) conmensurate work is available, and (3) mother is unwilling to work. You must show proof of all three elements to have income imputed.

On the issue from the emergency hearing, based on what you present, I can't imagine why a judge wouldn't hold a hearing in a hurry on the neglect, so, perhaps there are other facts that you are not telling me. If a parent acts affirmatively against the child's best interests, that is grounds for a new custody hearing. However, without reading the CPS report and the rest of your case file, it would be rather difficult for me to analyze your recourse.

Is there actually a motion to permit relocation before the court at this time? If so, then what does the affidavit of the custodial parent say (EXACT WORDS)? If not, then I'm not sure what you are looking to accomplish.

[momof7]

Wow!  Thank you for your very quick response.. I wanted to respond to your reply...

***  Abbreviations:
BM=Bio Mom  BD=Bio Dad DS=Son DD=Dear Daughter,  changed to be shown on the Internet forum
****
this is what I submitted to the courts in the ex parte request that was denied.. Yes.. we can still submit for a regularly scheduled hearing with the same info..

"FL – 310 ITEM 10
FACTS IN SUPPORT ATTACHED DECLARATION"


I, BD, am requesting primary physical custody of my children due to demonstrated neglect shown by BM.  
Child   Incidents
DS (4)   May 14th had a long burn on forearm from an iron.   May 23rd DS was unsupervised at the park at 9p when he broke his leg.  BM made NO effort to obtain medical care until the NEXT afternoon when she called me to take DS to the hospital. I am worried that permanent damage will result from being untreated for so long.  A report to CPS was made.
DS (7)   Taken to the ER to be treated for strep throat.  1 month later had to take to Dr. again, for same infection.
BM continues to discuss everything that happens in court with the children.  
DD  (22 months)   The Dr. is concerned over her speech delay.  I did teach her to say "papa" but DS stated that "mom was very mad" when DD said "papa" at her home.  I Had to take DD to the ER for severe dehydration in March.  For the entire month of April, had a yeast infection covering entire diaper area.  
**  According to the Medi-Cal office, coverage has not been provided since 3-31-05.  
**  BM  lives in (somecity) in a 3 bdrm home with her sister and her 5 children.  Therefore, there are 9 (nine) children living in this home.  Because there are so many children in a small area, my children are not in a safe environment, and when I pick them up for my visitation time, they are continuously sick and have noticeable marks and bruises.  
**  I will come, unannounced, to bring them happy meals.  Each time I arrived, all of my children, including DD, were playing in the street unsupervised.  I am deeply concerned for their safety and spoke to BM about this.  No changes have been made.  
** BM can not drive, so I have been left to care for all of their medical needs.  But because I am not the custodial parent, Medi-Cal will not issue the benefits cards to me, nor can I apply for them.  BM will not, or can not cover them.  
Therefore, I am requesting an order for Primary physical custody so that I can provide Consistency of:
•   Medical Insurance                                         *    Close Supervision
•   Adequate Space for each child                      *     Safety
I am worried that further, and possibly more harmful things, will happen to my children, for lack of proper supervision

================"Is there actually a motion to permit relocation before the court at this time? If so, then what does the affidavit of the custodial parent say (EXACT WORDS)? If not, then I'm not sure what you are looking to accomplish.
=================
No..
But I am worried that if we force the issue, via reporting her for section8 housing fraud, she will want to petition the court to move..

==========="If the mother is granted a move, the court will adjust transportation costs in consideration of the additional expense to the NCP. You can ask the court to impute income to the mother, on the basis that she has the (1) ability to work, (2) conmensurate work is available, and (3) mother is unwilling to work. You must show proof of all three elements to have income imputed.
============
We really are NOT concerned about the $$s..
We really ARE concerned over losing a lot of the visitation we already enjoy...   We've always asked the judge to impute income to the mother on all three basis.. So far, no luck..

Also with her moving so far away, we won't be able to protect the children...She will be able to get away with much more I'm sure...

CPS reports can only be subpeoned  (sp?)

We've basically been advised by a prior lawyer to "wait until we have enough" evidence to go for primary custody.. But the neglect is now reaching, I think, a dangerous level..  My 2-year old is in the street alone.. But.. proof is lacking...

Our case file is pretty empty because, for the sake of the children, we didn't want to drag them through a nasty custody battle and so we've "played nice"..

I think that if we continue to ignore it, we can, and probably should, be accused of neglect ourselves...

Does this help?  
I guess what I am asking is:

** Should we still wait until we have "more" or should we go ahead and file?

Thank you again...

[socrateaser]

You have written several dozen paragraphs showing that you have no proof of anything you allege, and furthermore that you are fully aware that you have no proof. My suggestion is that you sit down and list the things that you know are true, and next to those things, list all the evidence that you have to support those truths. Then, read it back and ask yourself if a third party who knows nothing about either you or the other parent (the judge) would accept your proof as showing that you deserve custody in preference to the other parent.

When you can look at that list and say, YES, without any question -- that's when you're ready to file. Otherwise, you're just wasting your time.

[momof7]

EXCELLENT POINT
I'm sure you just save us a LOT of time and aggravation..
Thank YOU!
sigh..
We are not ready to file...

Again, thank you