Custody Modification

[My Kids Mom]

My son's father, "JD", has had primary physical custody of our son since our son was 5.  Our son is now turning 13.  JD asked for me to take our son to live with me 2 years ago.  JD was sporadic in his visitation for the first year, and has not seen or contacted our son at all during this year.

JD threatened that if I went for a custody change with the California courts that he would take our son, since he still had physical custody, and I would never see him again.  JD wants to retain custody as a way to avoid child support.  This Wednesday I filed for an ex parte hearing asking for custody and no visitation until the court date.

JD did not show up to the hearing yesterday.  I have proof of notification via my cell phone records, and a notorized statement by a witness to the conversation.

JD is now saying that he will deny that I gave him notice and have my temporary custody orders overturned.

1.  Will JD be able to have my temporary orders overturned by stating that he did not receive notice of the hearing?

2.  Will JD even be able to get another hearing based on that lie?

[socrateaser]

>1.  Will JD be able to have my temporary orders overturned by
>stating that he did not receive notice of the hearing?

In order to get the TRO vacated, JD must appear in a CA court, which means that he will have notice of THAT hearing. Then you will present proof that the child has been living in CA for the past two years, that the child is well socialized, and the judge will find that there has been a substantial change in circumstances affecting the child's best interests, maintain  the status quo, and order a new custody hearing.

>2.  Will JD even be able to get another hearing based on that
>lie?

JD, can always file a motion to set aside the TRO, because a TRO is "temporary," unless the court converts it to a permanent injunction. So, eventually you need to file a motion to modify custody and get a permanent order.

[My Kids Mom]

Just to clarify, there is no restraining order, just a temporary order stating that I have full custody and he has no visitation until the hearing.  I did file for that hearing and a date has been set.  We also have a date set for mediation before the hearing.

1. My question, more specifically, is whether or not he can file an ex parte hearing even though there is already a regular hearing scheduled.

Thank you very much.

[socrateaser]

>Just to clarify, there is no restraining order, just a
>temporary order stating that I have full custody and he has no
>visitation until the hearing.  I did file for that hearing and
>a date has been set.  We also have a date set for mediation
>before the hearing.
>
>1. My question, more specifically, is whether or not he can
>file an ex parte hearing even though there is already a
>regular hearing scheduled.
>
>Thank you very much.

ALL ex parte hearings are considered TROs, so if you had an ex parte hearing, then you have a TRO.

The direct answer to your question is, yes, he can file, but he will need to tell the court that there is an existing order, and the court will then refuse to grant his request, pending your hearing.

[My Kids Mom]

Thank you very much.  I can't tell you how much peace of mind you just gave me.