I have been cohabiting (not married) with the mother for 10 years, our daughter is 4 y/o.
I signed a voluntary declaration of paternity (pop-dec) when the child was born, my name is on birth certificate, and positive paternity on a DNA test.

We are still living together, and the mom occasionally threatens to move to NY to live with her sister, and take our daughter with her, during arguments.

From another answer here (below), I understand I can file to prevent this from happening:

"The mere filing of the Summons, Petition and UCCJEA Declaration causes an automatic
temporary restraining order to go into effect (called ATRO) which, once served on
the mom, prevents her from leaving the state with the child without your written
consent or an order from the court."

Some background. I have been the sole financial support for mother (10 years) and daughter (4 years). Mom worked only briefly during this time, and has been unemployed for about 7 years. She has no savings, and no other sources of income. However, I am certain that her sister in NY would take her in and offer financial support.

Here are my questions:

1. If we are still cohabiting, how does this affect the filing of the court papers above?
Custody is obviously not an issue as long a we are living together. I just want to preclude the mom from moving out of state without my, or the court's, permission.

2. According to the previous answer above: the "temporary restraining order (called ATRO)... once served on the mom, prevents her from leaving the state."
What does "temporary" mean in this context? How long does that last? Of course, I would prefer that it be permanent until our daughter is 18.

3. If I do not file the paperwork above, or the "temporary" restraining order expires, and she does take the child to NY, what recourse do I have then to have my child returned to me in CA? Do I have any recourse? If so, in what state should the issue be litigated, NY or CA?

Thanks!

We have a couple of people very familiar with CA Family law so they can correct me if I'm wrong. But I believe the ATRO is only applicable if the parents are not cohabitating.

The Temporary means until the separation/divorce is finalized and a permanent custody/support/visitation agreement can be set.

At this point with living together your stuck between a rock and hard place. If you file you more then likely won't be living together any more. And since she has been home with the child she can make her case for primary caregiver. < majority custody >. So you can be out on your ear pretty quickly. Maybe lay the ground work for it in case she leaves but don't file until either you both break up or its imminent that she is leaving for NY.

To clarify (I'm the question poster):

I won't be out of the house (it is in my name only, purchased before she moved in, and I've made all the payments, taxes, ins, etc.).

Also, due to my line of work, I am home most of the time (so primary caregiver status shouldn't necessarily be a given in her favor).

In my favor, she has a history of ongoing physical problems, and as well as the regular use of psychiatric meds (clinical depression, anxiety attacks, etc.). Basically, she has no career, no finances, and is bordering on physically/psychologically disabled. In court, I think things would go favorably in my direction.

However, again, one of my primary concerns is that "possession is 9/10th of the law." Were she leave with our daughter to NY without prior notice to me, what recourse would I have?

You would have to file a request for custody where she moves to.

I think you were quoting something that I wrote earlier because it sounds familiar. The answers to your questions are very simple so I'll answer them in the order asked:

1. Cohabiting has nothing to do with the ATROs (there are a couple of automatic temporary restraining orders actually, some of which apply in divorces, so the acronym is usually in the plural). They go into effect no matter where you live. Married people cohabit all the time while a divorce is pending and it makes no difference whatsoever. If you are unmarried and still cohabiting it's the same.

2. The ATROs stay in effect while the case is pending and only go away if the case is dismissed, goes to final judgment, the court issues an order allowing a party to do something that is otherwise enjoined or the parties so agree in writing.

3. If your coparent suddenly disappeared with your daughter you could file an action for sole legal and physical custody of the child and do so on an emergency basis --a possible argument would be parental abduction if the mom didn't tell you where she was (that this would be granted is almost a 100% certainty in such a case). If she gave you notice of her intent to leave you could run into court and file the court action before she left and that alone would stop the move. If you didn't get to court fast enough to prevent her departure, and if the court didn't see the situation as one of child abduction and refused to grant emergency relief, you could still argue for return of the child by simply requesting sole legal and physical custody, like you might in any other case. That of course would launch you into the whole mediation process and you might wind up needing a custody evaluation and so on.

Oh, and jurisdiction would always remain in California provided you continued to reside here and provided you filed your action within 6 months of the move-away.

As a follow up let me add this, because people often fail to understand the issues involved.

Disappearing with your child and not telling your co-parent where you are--what you might be concerned with in your case-- is a major state and federal crime (and felony).If this happens what you do immediately is file a court action, set an ex parte (emergency) hearing (usually scheduled within a day or so depending on local court rules) in which you request sole legal and physical custody of the child with no visitation to the other parent, make a police report, appear in court and, when the judge grants your request (which will happen) you turn the orders over to the Child Abduction Unit of your local DA's Office and they will help you locate and get your child back.

That's what is suppose to happen and that is what is expected for any reasonable parent to do in that situation. Don't listen to people who tell you as a dad you have no rights, or that you have to be on the birth certificate to do this, or that "moms always get the kids unless they're prostitutes or heroin addicts" and all of that nonsense. That is total you-know-what offered by people who simply do not know what they are talking about. It's a level playing field. If you ever see yourself questioning this strategy ask yourself one simple question: What would the mom be doing if you did this with the kid (take off and not let her know where you were)? Freaking out, right? So should you.

I have been cohabiting (not married) in CA with the mother for 10 years, and our daughter is 4 y/o.

I signed a voluntary declaration of paternity (pop-dec) when the child was born, my name is on birth certificate, and positive paternity on a DNA test.

We are still living together, however, it is a rocky relationship, and the mom occasionally threatens to move to NY to live with her sister, and take our daughter with her, during arguments.

She will be going to NY, with our daughter, to visit her sister for two weeks next month.

Suppose she does not return to CA after this two week vacation (I cannot go with them due to work schedule). That is, what if the mother calls me from NY and says something to the effect "I am not coming back, and I am staying in NY with our daughter." ?

I previously got some good, but a few conflicting, answers in response to a similar post about this several months ago:

https://www.askmehelpdesk.com/family...ld-318108.html


I would appreciate it anyone could help to provide clarification to the questions that were left unanswered, or for which there were conflicting answers:

Assuming she does not return to CA with our daughter after her two week stay with her sister in NY:

1. Where do I file court in court for custody? In CA (where we have resided for 10 years, and where the child was born)? Or, do I have to file in NY, and the case would be heard there? Which jurisdiction would have the case?

2. If the answer is the CA court hears the case, what if she remains in NY and refuses to return? Would the CA court order her back to CA for a custody hearing? What if she ignores such a court order?

3. Since I would know where mother and daughter are located (with her sister), and since I knew she was leaving CA for a two week visit to NY, but she does not return after two weeks, is that considered child abduction?

4. Should the case go to a custody hearing in CA, what are my chances of getting custody? Some relevant facts:
The mother has no job, no savings, no place to live (other than with her sister in NY), and has a long history of both medical and psychological problems for which there are medical records that I presume could be subpoenaed.
In contrast, I have an extremely secure job/income, I'm a home owner (house is solely in my name), in good physical/mental health, I work from home most of the time (so which parent was the "primary care-giver" would not immediately be in her favor), and the child has been attending pre-school, and has friends, here near my house.

Thanks, in advance, for any clarifications.

1) In CA, assuming you did it within 6 months of her departing.
2) If she refuses to return, a summary judgment can be entered against her. She does not have to return. She DOES have to return the child if that is the ruling of the court.
3) It can be, but someone will check me on CA laws since they are very different than most of the rest of the country.
4) The facts that you listed are immaterial. You may be awarded primary physical custody or you may get joint custody. It will depend on the ruling of the court *in the best interest of the child*.

Edited to add: pay most attention in your previous post to Cadillac59's answers as he is a family law specialized lawyer in CA.

Partial quote:
3. Since I would know where mother and daughter are located (with her sister), and since I knew she was leaving CA for a two week visit to NY, but she does not return after two weeks, is that considered child abduction?

4. Should the case go to a custody hearing in CA, what are my chances of getting custody? Some relevant facts:
The mother has no job, no savings, no place to live (other than with her sister in NY), and has a long history of both medical and psychological problems for which there are medical records that I presume could be subpoenaed.
In contrast, I have an extremely secure job/income, I'm a home owner (house is solely in my name), in good physical/mental health, I work from home most of the time (so which parent was the "primary care-giver" would not immediately be in her favor), and the child has been attending pre-school, and has friends, here near my house.

( end quote )

3) From your eyes Im sure its abduction but from a legal standpoint its not that until she relocates without telling you where she is. At the point where she doesn't bring the child back that's parental alienation. Hence that's why your trying to prevent the moveaway of your child.

4) There is no " should it go ". If she refuses to return with the child or refuses to return the child you would go to " family court " near you and file for imidiate full custody. Making ex-parte motion with the courts. In California most family courts have a court facilitators office that can help you file but in this situation I would advise hiring a lawyer right away. Be mindfull of what you say and don't announce any plans that are ongoing. Just do it.

1. You file the case for custody in California. Only California would have jurisdiction under the facts you presented but, as stevetcg said, make sure you don't wait more than 6 months from the time the child and mom left. If you do, NY would have custody and you'd be running back there to litigate this. If you file promptly you will lock in jurisdiction in California for as long as you continue to reside here (there is an exception to this that doesn't apply in your case).
2. The California court is not going to order her to return to California, or show up at the hearing, but if she doesn't show then you are in a very good position of having custody awarded to you (it's not an absolute but the odds would be favorable).
3. No, the mom's decision not to return to CA is not, by itself, child abduction. But, if she refuses to tell you where she is, drops out of sight and won't communicate, that could be a basis to allege parental abduction and that should be reported to authorities. If that happened you could appear in court on an emergency basis and probably get temporary custody yourself.
4. It's hard to say what your chances of getting custody would be. If the mother behaves and cooperates with the court (even if she doesn't move back) you might end up with some sort of shared custody arrangement. The issue would be submitted to mediation first, of course, and if you could not come up with an agreement you might end up with possibly going through a limited custody evaluation (what some call a 3111 evaluation). The fact that you are financially better off than the mom cannot be considered by the court in making a custody determination; in fact, we have case law that specifically says that that's off limits (the way we correct for financial discrepancies between parents is through what we call child support!)

My thanks to stevetcg for his kind endorsement :)!

Why are you waiting? Why aren't you filing for custody NOW? Why react after she leaves when getting the child back will be much harder? If you act right away and forestall her ability to keep the child from you, you will be in a much better position.

Scott has brought up an excellent point. Why not be proactive and file now? That way if you do you will have the advantage of the automatic temporary restraining orders (ATROS) preventing her from leaving the state with the child without your written permission or a court order. Whether that would change the outcome of a custody dispute is hard to say, but it is probably a better strategic move. You know, an ounce of prevention and all of that?

I'll also point out that the previous thread was posted a month and a half ago. And you apparently have taken no action in the interim. So I ask again, WHAT ARE YOU WAITING FOR?

Possibility of breakup in future.

What can I do to increase the odds of being awarded child custody?

Background:

We are unmarried, I am the father, and have signed paternity rights at birth. I have lived together with the mother for 10 years, and we currently all reside together. Child is age 4. Our house is my exclusive property, and I have provided sole financial support for the family except for about a 2 year period when the mother worked. All mortgage and other bills paid by me. Mother has not worked for about 7 years, and is financially indigent. All financial assets are separate.

Mother has chronic and almost disabling health problems, including chronic pain. Has taken, and is taking, a large number of prescription drugs. In addition, mother suffers from chronic clinical depression and also likely has some moderate personality disorders including avoidant and borderline.

I am home 4 days a week, and at work out of town 3 days (2 overnights) for 9 months each year.

Mother has been a full-time mom during this period (only a few months of preschool so far for the child).

Mother would likely move across the country to live with relatives if she was awarded custody and given court permission to move out of state . If she were to live locally, it would be difficult for her to find (and keep) employment due to her scattered work history and health problems.

So far, I have come up with this list to presumably increase the odds of being awarded either physical joint custody, or full custody. Any critique or additional thoughts are appreciated.

-- get a live-in nanny (to provide care during the days/nights I am at work). We have a separate area of the house for this. This would support an argument that sufficient child care is provided when I am away at work. We plan to have a nanny move in shortly.

-- wait to breakup (if possible) until the child starts kindergarten locally (in about 9 months). This would add a tie to the local area.

-- document mother's health problems (how? I presume medical records could be obtained during custody hearings?)

-- document mother's unstable personality (especially angry outbursts directed at child). Video record these outbursts?

Again, any suggestions would be appreciated. Thanks, in advance.

EDIT: I made this post before checking and realizing that OP has been asking about this scenario since February 2009.

The only thing you can do is prove that you are the more fit parent to care for the child. The mother's health may be a good starting point - however, you stated that she has been the primary caretaker, which is going to work in her favor.

The mother wanting to move out-of-state may also work in your favor. I don't feel that it would be in the child's best interests to uproot them from their home of the past 4 years but I'm not a judge - the judge may feel that it's in your child's best interest to be placed with the mother.

The odds of you getting sole legal custody are slim to none, unless you can prove that the mother is unfit or a danger to the child. Since you're trying to gain primary physical custody, I would present your arguments rationally, showing that the mother may not be physically capable of raising a child on her own.

In addition to the typical up then down relationship roller coaster ride, one reason is to further establish connections to the local area. E.g. waiting until the child enters school, waiting until a bond is established between a live-in nanny and the child, as well as collecting information (both here and elsewhere) about how to gain an advantage in custody hearings.

So far, I've only heard feedback that the mother's poor health may be an important factor.

No feedback so far re the other issues I mentioned re the impacts of:

-- mother's lack of income or savings, or property ownership
-- live-in nanny
-- documenting mental health issues (e.g. video recording outbursts).

From a layperson's perspective, the decision processes of the family court system are not exactly laid out in clear black and white re which of the factors above carry the most weight, other things equal. The generalization "who would be the better parent" seems to be pretty subjective. However, I'm assuming there are precedents wherein these factors have already been evaluated, other things equal.

Far better to learn about them now, and try to set up a situation more likely to work in my favor, than to simply be a passive pawn of the court system, right?

Again, feedback and suggestions most appreciated.

The courts would rather see the child with a parent than with a nanny, so that's one point for Mom.

The mother's lack of personal property has no bearing on what type of parent she is, so that's irrelevant.

As far as video-taping her, that could very well be illegal if you don't have her consent. You may not even be legally able to record an audio tape of her outbursts without her consent. You'd be better off having a non-biased witness take the stand, informing the court that they have personally seen and heard the mother's outbursts.

EDITED TO ADD: Scott asked you "What are you waiting for?" back in April - that was over 8 months ago, and you still have done nothing.

Ah, apparently you did not read my previous post closely, this8384...

The nanny situation would be only for 2 nights a week for about 8 months a year. This is not a simple "the courts would rather see the child with their mother than a nanny" situation.

Re video taping, I presume that if the other party is aware of being video recorded in the home, and does not object, that in itself would constitute consent.

I find it difficult to believe that a child would be given to an jobless, indigent parent over a financially stable parent, other things equal.

Finally, I suspect that having ties to a local school, which will not start until next year, would be a factor (again, thus the rationale for waiting to take action).

Ah, apparently you don't understand. The courts would rather have the mother with the child 7 nights a week, instead of sometimes with dad and sometimes with a nanny. Sorry that you don't like it, but that doesn't change fact.

And I highly doubt the mother of your child is going to consent to you suddenly "just wanting cameras in the house" when she's been threatening to leave you for the last 10 months. No, that won't raise any suspicion at all(sarcasm font engaged). Not to mention that even if she is aware of cameras, you still may not be able to use the video-tapings against her. If she gets a good attorney, you won't.

You can suspect what you like. My stepkids mom moved 2 years ago and they transferred schools; my husband got primary custody this year and they started a new school by us. So "having ties" to a school is moot.