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    WTR's Avatar
    WTR Posts: 3, Reputation: 1
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    #1

    Nov 3, 2013, 08:14 AM
    Child custody: why/why not file?
    The mother of of our children (ages 1 & 8) and I have been and are still currently cohabiting (unmarried partnership) in California going on 17 years. She has repetitively told me that she "will move our children to her mothers house on the east coast and that I have no say or rights in the matter, so deal with it". Proactively I filed for petition and summons to be served on her requiring written consent to take our children out of state. California allots equal parental rights; I had autographed the birth certificate for each of our children when they were born (which required me to sign a declaration of paternity).

    We are in the process of finding counseling for mediation and our relationship. I firmly think and feel (excluding abuse and detrimental dysfunction) that children have a natural right to a full relationship and convenient access to both their parents, and vise versa. I have not filed for any type of custody of our children. At this moment the only reason I would file would be in an effort to legally establish my intent (joint custody 50/50) and circumvent the opportunity for her to file for custody which may restrict my parental rights beyond being equal.

    Why/why not file for joint (50/50) or custody? Note: I am attempting to only take actions which I think necessary to secure equal relationship and accessibility for both children and parents.

    Thanks.
    cdad's Avatar
    cdad Posts: 12,687, Reputation: 1438
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    #2

    Nov 3, 2013, 09:22 AM
    Right now by your own words your living together at this point. Until that changes there is no reason to file for custody as you both share it at this time. As soon as any changes take place like her moving out then that is the time to file. You can prepare the paperwork for the coming filing leaving blank the unknowns until the situation changes. In no way should this be used as any type of threat. Also be very careful with anything said regarding the children. Curb your anger to the best of your extent and dont text anything. Keep records and document important facts for your case starting now.
    ScottGem's Avatar
    ScottGem Posts: 64,970, Reputation: 6056
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    #3

    Nov 3, 2013, 09:34 AM
    I agree with cdad. It sounds like you have established your legal rights to the children. She is dead wrong if she believes that she can move without your consent and that you are powerless to do anything about it. You seem to have researched the law and I would show her the law. If she does sneak away, you can then file for custody.

    She may be forced to return the children to CA. However, if she does file for custody and permission to move, it may be granted with you getting liberal visitation.
    WHYNTT42's Avatar
    WHYNTT42 Posts: 6, Reputation: -1
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    #4

    Nov 3, 2013, 10:07 AM
    Singing your name in Birth Certificates does not grant you, a bio- father rights. Can she prove in court that, you are not the Bio-father? Then you have no case.
    Please do not use children to continue your DESIRE to be with her, whatever reason.

    Joint custody is a NO-NO in reality; and child suffer the most in this kind of parental dispute. Unless you enjoy travelling between coast to coast. If she is up for RAILROAD your life, she will do anyhow;
    If you are the bio-father, go to court ask for full custody. Or give to her with your visitation rights, holidays, birthdays, any special occasion. Pay child support, do all goods, your duty for your child. When she failed to provide them with a healthy life style, socially, emotionally, financially.. take the children back.

    You can still remain to be a good father to your children, for yourself, not for her.

    I am a legal clark, work for family law firm in Washington dc. My BOSS licensed in CA,DC,MD,and VA. I have seen many of the cases like yours.

    A True Story for Your consideration:
    One clients lost everything when his Legal wife suit him, and it was proven that, the children were from the mistresses previous relationship, he and she use them to scam IRS, to make real estate investment. The mistress is illegal to the USA and bio-father has been deported. Court award our Clients several million dollar, everything He accumulated. He even made WILL using those children, but he cannot left out his wife from his wealth/ and his counsel lost to proof that, he did it because of.. we proof that, he did a Fraud, they both were criminally charged and the women is fighting deportation. It is a ORANGE COUNTY, CASE.
    joypulv's Avatar
    joypulv Posts: 21,593, Reputation: 2941
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    #5

    Nov 3, 2013, 10:49 AM
    WHYNTT42, this is a legal forum. Your answer is mostly not relevant to the question, and you have far too much opinion added.
    ScottGem's Avatar
    ScottGem Posts: 64,970, Reputation: 6056
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    #6

    Nov 3, 2013, 10:52 AM
    Quote Originally Posted by WHYNTT42 View Post
    Singing your name in Birth Certificates does not grant you, a bio- father rights. ...

    Joint custody is a NO-NO in reality
    First. Being listed on the birth certificate DOES confer rights to a father, though those rights can be challenged. But unless challenged, the listed person is presumed the legal father. Also did you miss that the OP signed a declaration of paternity. I don't think paternity is being questioned here, only custody.

    Second, I agree that joint PHYSICAL custody rarely works in reality. But Joint LEGAL custody is another issue.

    Third, the case you cited doesn't appear to have any bearing on the OP's situation.

    We take pride in the accuracy of the responses here, I would have expected a law clerk in a Family Law firm to provide a more accurate response.
    AK lawyer's Avatar
    AK lawyer Posts: 12,592, Reputation: 977
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    #7

    Nov 3, 2013, 03:49 PM
    Quote Originally Posted by WRT
    ... Why/why not file for joint (50/50) or custody? ...
    As others have suggested, it might exacerbate the situation.

    However, I disagree. If you have a court order recognizing your custody rights, it will carry more weight should she attempt to take the children and move to another state on the opposite coast. Furthermore, if you get a decree prohibiting her from moving them there you would be in a much better position. Go for it.
    WTR's Avatar
    WTR Posts: 3, Reputation: 1
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    #8

    Nov 4, 2013, 06:25 AM
    Thank you all for your time, energy, consideration and expertise of your responses.

    Note: I do not hate her; I am way past anger and am focused on solution & resolution (refer to Dave Mason song - we just disagree). I really appreciate answers that are sensitive to circumventing warfare and focus on when & why to and to what degree to implement filing for custody would be best advised if needs be.

    Having already taken a first legal step (her to need for written consent to travel out of state with our children) forces her to understand the seriousness of the matter but also to understand there are legal rights, processes, and consequences. At this time filing for custody would be taken as a threat and exacerbate the situation and probably eliminate the opportunity of her being agreeable to find resolve through mediation and relationship counseling.

    I see this as a process that needs careful consideration as when implementation of a legal strategy is absolutely necessary and when to abstain from preemptive strikes. Justified control versus excessive force.

    If joint custody is a NO NO in reality: I don't understand, why is that? If we can't find a agreeable solution via mediation; how best to arrange the closest scenario toward joint physical and legal custody. My goal is to find the best workable solution, which retains each parent, his/her natural human rights, responsibilities, & relations as a parent in consideration of what is in the best interest for our children.

    My plan of action:

    1. Insure children are not separated from their parents, friends, community, life style and home.
    2. Mediation & relationship counseling.
    3. If #2 is unsuccessful and we cannot come to any agreeable resolve: mediation via the court system (forced?)
    4. If #3 is unsuccessful (then we have truly failed as human beings) and the courts will have to decide.

    Thanks again.
    ScottGem's Avatar
    ScottGem Posts: 64,970, Reputation: 6056
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    #9

    Nov 4, 2013, 06:32 AM
    The reason joint PHYSICAL custody is unrealistic is because the parents would have to live in the same school district. One parent needs to be the primary custodial parent, the other the non custodial.

    Other than that your approach seems reasoned and works for me.
    WTR's Avatar
    WTR Posts: 3, Reputation: 1
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    #10

    Nov 4, 2013, 09:11 AM
    Quote Originally Posted by ScottGem View Post
    The reason joint PHYSICAL custody is unrealistic is because the parents would have to live in the same school district. One parent needs to be the primary custodial parent, the other the non custodial.

    Other than that your approach seems reasoned and works for me.
    Thank you for all your responses Scott,

    Being that both of us are equally supportively of homeschooling our children, school district may not be as crucial a factor as the distance of each parents residence from each other. Going forward if my partner and I can work out a physical & legal custody agreement on our own we are golden, otherwise no matter who files for any type of custody if contested by other party, the court will decide as how to best divvy physical and legal custody by the measure of "in the child's best interest". Is my understanding of this accurate?
    ScottGem's Avatar
    ScottGem Posts: 64,970, Reputation: 6056
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    #11

    Nov 4, 2013, 09:34 AM
    Yes that is accurate. However, if there is a breakup, then you should formalize things through the courts. Otherwise, any agreement does not have the force of law. While creating a mutual agreement is all well and good, getting it formalized makes it more difficult to renege on.
    ScottGem's Avatar
    ScottGem Posts: 64,970, Reputation: 6056
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    #12

    Nov 5, 2013, 07:06 AM
    One does not have to be a member of the bar to understand the law. Nor does one need to to be a member of the bar to cite the law. Neither I nor Joy have represented ourselves as lawyers. Your threats are meaningless. As Joy indicated, in the Law forums here, answers need to conform to statutory law. Your answers, especially from someone who claims to be a researcher at a law firm, leave much to be desired. So far I have seen nothing from you citing the law. Instead you have cited cases your firm worked on, that you feel are similar. Yet the similarity seems to be only in your opinion. In one case where you did talk about law, you were wrong.

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