ex is keeping my daughter away from me until court order for custody

[sad dad in cali]

after a 2 year relationship I had a beautiful daughter with a woman.   It did not work out and several months later went back to my wife of 16 years.  As soon as ex girlfriend found out, she kept my daughter away from me and immediately filed for full custody. I had my child half of the time and now cant see her at all! what do i do? what are my rights? can i take her from daycare? is this extreme?...i really miss my daughter and i feel like she's been abducted. i've called the police and they say there is nothing they can do without a court order. It will be almost 45 days til we see a judge.

[joni]

take the time to read about the old messages on this board.  your story is not a new one and very typical here.

what's your current custody arrangment?  any formal court order for custody or visitation?

If both answers are no, since you weren't married, probably in your state that mother has sole custody by default.

Custody has nothing to do with visitation.  You need to file for joint legal custody, although, because you weren't married and the mom is mad at you, you probably won't get it.

Custody will take forever to resolve.  YOu need to get an attorney, now and file now for a visitation schedule NOW, ask for an emergency order to maintain the status quo you had prior to these problems, which was 50/50.  Unless you have a really good atty AND you yoruself are prepared to totally immerse yourself in the legal proceedings, you will probably end up with EOW and one evening a week.

[sad dad in cali]

thanks so much, I am working on getting an attorney and I will let you know how it plays out.  I hate to take it on the chin, so I will fight for my daughter.

[Troubledmom]

CALIFORNIA CODES
FAMILY.CODE

3040.  (a) Custody should be granted in the following order of
preference according to the best interest of the child as provided in
Sections 3011 and 3020:
   (1) To both parents jointly pursuant to Chapter 4 (commencing with
Section 3080) or to either parent.  In making an order granting
custody to either parent, the court shall consider, among other
factors, which parent is more likely to allow the child frequent and
continuing contact with the noncustodial parent, consistent with
Section 3011 and 3020, and shall not prefer a parent as custodian
because of that parent's sex.  The court, in its discretion, may
require the parents to submit to the court a plan for the
implementation of the custody order.


Keep this in mind when fighting for your daughters right to have EQUAL access to BOTH Parents.

If your child's mother has already filed in court my suggestion will be for you to IMMEDIATLY contact your counties Family Court Services office and get an appointment AS SOON AS POSSIBLE with the mediator.

In California mediation is REQUIRED in any motion that involves child custody. The faster you get in and start hashing things out the better. Especially if the two of you are able to come up with an agreement that works for both of you and your child.

Good luck and get that attorney yesterday.
TM

[joni]

get yourself an atty who's certified in family law, you can find one here

//www.aaml.org/directory.htm

you may pay more upfront for their qualifications, but trust me, it'll save you in the end.

[Troubledmom]

http://www.deltabravo.net/guide/index.htm ~ The Layman's Guide To Being A Good Client

http://www.deltabravo.net/custody/attyquestions.htm ~ Attorney Interview Questions

Useful articles in retaining an attorney...

TM

[CustodyIQ]

If you and the mom were never married, than you are not recognized as the father until there is a declaration of paternity entered with the court and subsequent court orders on what time you shall spend with your daughter.  If you take your daughter without court orders, you can get in a heap of trouble.  Not fair, but that's the way it is.

Things that you should be doing right now are:

1.  Get witnesses who can testify about how much time you spent with your daughter.

2.  Gather together photographs of you and your daughter at all ages of her development.

3.  Put together a calendar, to the best of your memory. of all the time you spent with your daughter after the separation.

4.  Put together a description of the typical parenting contributions made while you were with the mother (e.g., "I took care of daughter from 3pm to 8pm daily, while mother worked).

It's not clear from your post who filed what in court.  If you filed the paternity action, you may want to go to the court clerk to see if you can get the hearing moved up, based upon mother's complete block between you and child.

Else, if you think that you and the mother would both stipulate in court that you're the father, you can try to go Ex Parte.

Ex Parte means that you go to the court clerk to get on calendar for a time more than 24 hours away.  E.g., if you went in Friday, you could ask it for Monday.

BTW, the court clerk is the judge's own helper.  The court clerk sits in the courtroom and handles all the paperwork.  You would go into your assigned courtroom, and you can ask the bailiff to point you to the clerk.

If the court clerk is hesitant about scheduling an Ex Parte, don't be afraid to have a one minute debate.  Tell the clerk that the mother is completely frustrating your access to your daughter-- after you were heavily involved for 2 years-- and 45 days is far too long for a toddler to go without seeing a bonded parent.

The clerk may be willing to go check with the judge to see if the judge would hear the Ex Parte.

If you get on calendar for Ex Parte, you'll then provide at least 24 hours notice to the mother.  Send an email, tell her on the phone, leave a voicemail.

At the Ex Parte, you can ask for anything.  You probably won't get much of anything.  The judge may not even make any specific orders.  But the judge may lecture/warn the mother that you and the child must see each other prior to the hearing in 45 days.

That may at least let you see your daughter occasionally (rather than not at all) if the mother has half a brain to not offend the judge.  At the real hearing in 45 days, you can tell the judge that despite the words he said at the Ex Parte, the mother continued to block access to child.

Spend these few weeks really learning about how family law works in California.  It's much different than one would assume.

Without much knowledge of family law, and without a lawyer, you're going to get trounced in court.  At least study vigorously, if you can't find a lawyer, to know what issues are relevant to a court and what the judge's starting place is.

[sad dad in cali]

that was the most awesome advice!!! god bless you and I really appreciate it...she filed the case(does this decrease my chances of getting the hearing moved up???) and she admitted paternity already. BTW, i went to schedule an appointment to speak with an atty tomorrow regarding filing the emergency hearing docs w/court(clearly I'm out of my league, as having never experienced anything like this), based on many of the reasons you  reiterated (you clearly understand exactly what I am going thru x( :(  thank you so much and wish me luck


signed,

cant sleep at nite

[CustodyIQ]

If she's already declared that you're the father, all the more reason for an emergency Ex Parte right now.

The barrier I was previously assuming was that paternity hadn't yet been officially established.

Now, armed with her declaration that you're the dad, you may find the judge less hesitant to make some orders prior to 45 days.

The hearing in 45 days is hers.  You'd have to file a motion to move it up.  Probably ain't worth it.

Your main argument for the emergency Ex Parte is that this is a toddler, a developmental age that requires frequent contact to sustain a bond with a caretaker, and the mother is acting against the child's interest by abruptly and completely severing the tie between father/child.

It'd be different if she was tossing you a tiny bone of 2 hours every Saturday with child, which the judge may find good enough for 6 weeks before ruling.  It'd be different if this was a teenager too.

Also think long-term.  At this point, the mother is setting herself up to be the primary caretaker.  This isn't something you can likely change.

However, it's a big strike against mom later if she went 45 days refusing to let you spend time with child.

To that end, make sure she can't say in the future that you just disappeared for 45 days, and "of course I would have been willing to let him see the child, but he never asked!"

Until you have court orders or some other temporary agreement, send her a daily email, requesting that she let you spend time with child.  In each email, give her two options of a four hour window (e.g., "Tomorrow from 3pm to 7pm, or the next day from 10am to 2pm"), and ask for her reply.

Keep those emails civil... any harsh words, and your daily emails suddenly become harrassment.  Print out each one and save it.

They may come in handy in the future, that you made 40+ attempts to work with mom to see the child, and mom either ignored you or denied every attempt.

Check out my website to read about how family law really works, go into the Questions/Answers section to read about other folks' situations.

Make sure any attorney you retain has been before your judge.  Your attorney could be more effective if she/he is aware of the judge's biases or quirks.