Back story: Short marriage. Husband was diagnosed with bipolar disorder during sixth week of my pregnancy. One week later he was hospitalized for suicide attempts. During last trimester of my pregnancy, he went off meds. When baby was 8 weeks old, husband confronted me with some (irrational) complaints and held loaded gun to his head, threatening to pull the trigger, while standing over me while I was holding the baby. I left that night and have not been back. TRO was filed and granted temporarily. Judge wanted to give joint custody but I have managed to keep most of the custody stuff out of court and just between us. He sees the now 14 month old baby for a supervised (by his family) overnight every other Saturday and an unsupervised park visit on non-overnight Saturdays.

I live alone in a neighboring county. He lives with his parents. Both of us work full time. Baby is in daycare 8.5 hours a day, M-F.

Current dilemma: There was an incident at baby’s daycare this week. Baby somehow sustained some bumps to his head while under the supervision of the daycare provider. She could not explain how they happened so I took the baby to the ER to make sure there wasn’t a concussion. I filed a report with Child Protective Services while I was there because daycare’s explanation sounded fishy. I have found a new daycare, this time a center, that comes highly recommended.

When I alerted baby’s father to the situation and told him that I was switching daycares, he told me that he wants to bring child to live with him instead since his mom does not work and can take care of baby during the week. I am afraid that if he takes me to court I’ll lose because I’m a single (but very active, involved and devoted) mother and he has more family support. His family is reasonably well off and prominent in their community. I am one of very few people that has seen their darker private side. I’ve been trying to keep the father as active as possible in the baby’s life but I’m scared that they’re going to try to take my son away from me because they have more resources.

I have a lawyer but I don’t like to call him until I have at least attempted to research my situation because he is extremely expensive. So I would really appreciate any input on either what I might expect legally or anecdotal information from your life experience.

Thanks in advance…

BTW, everyone involved lives in California.

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Originally Posted by GirlWSlingshot

Back story: Short marriage. Husband was diagnosed with bipolar disorder during sixth week of my pregnancy. One week later he was hospitalized for suicide attempts. During last trimester of my pregnancy, he went off meds. When baby was 8 weeks old, husband confronted me with some (irrational) complaints and held loaded gun to his head, threatening to pull the trigger, while standing over me while I was holding the baby. I left that night and have not been back. TRO was filed and granted temporarily. Judge wanted to give joint custody but I have managed to keep most of the custody stuff out of court and just between us. He sees the now 14 month old baby for a supervised (by his family) overnight every other Saturday and an unsupervised park visit on non-overnight Saturdays.

I live alone in a neighboring county. He lives with his parents. Both of us work full time. Baby is in daycare 8.5 hours a day, M-F.

Current dilemma: There was an incident at baby’s daycare this week. Baby somehow sustained some bumps to his head while under the supervision of the daycare provider. She could not explain how they happened so I took the baby to the ER to make sure there wasn’t a concussion. I filed a report with Child Protective Services while I was there because daycare’s explanation sounded fishy. I have found a new daycare, this time a center, that comes highly recommended.

When I alerted baby’s father to the situation and told him that I was switching daycares, he told me that he wants to bring child to live with him instead since his mom does not work and can take care of baby during the week. I am afraid that if he takes me to court I’ll lose because I’m a single (but very active, involved and devoted) mother and he has more family support. His family is reasonably well off and prominent in their community. I am one of very few people that has seen their darker private side. I’ve been trying to keep the father as active as possible in the baby’s life but I’m scared that they’re going to try to take my son away from me because they have more resources.

I have a lawyer but I don’t like to call him until I have at least attempted to research my situation because he is extremely expensive. So I would really appreciate any input on either what I might expect legally or anecdotal information from your life experience.

Thanks in advance…

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More resources should not matter when it comes to custody - of course, he can try for full custody at any time, just because he has nothing better to do. That doesn't mean he will win. His past record with you is most definitely NOT going to help his side of things if he decides to pursue that course of action.

Nothing in Court is 100% but I cannot imagine you will lose custody unless you are unfit which you obviously are not. Maybe more - or less - visititation will be ordered but studies prove that a child is not harmed by being in daycare so they don't even have that argument to fall back on.

I think he's trying to scare you - and I wouldn't let him to do. You can't keep him for filing and I wouldn't pay an Attorney for legal advice until you are served with something and need legal advice. Your ex is just talking to scare you and because he likes the sound of his voice. There is nothing for you to do unless and until he makes a move.

I think this is one of those matters that are part of the judge's broad discretion. If the dad's visits are supervised, even if overnight, I would not expect the court to okay the use of the paternal grandmother as a daycare provider, particularly since the dad lives with her and has a history of DV and bizarre behavior. Supervised visitation is usually for limited periods (I know he has some unsupervised day visits) and until the court is sure there's no need for further supervision, I would not expect the judge to increase the dad's time (at least now), not even if it's under the guise of daycare being provided by grandma.

I'd resist the request and say you'd prefer an alternative care provider. If you have sole legal custody (and presumtively should if there's been a finding of DV -see Family Code section 3044) then you can make this decision yourself.

Review your current orders and see if you've got sole legal and see what they say about childcare. If he doesn't like it, let him file a motion for a modification and if he does ask for 271 sanctions (attorney fees, costs). I've seen a number of cases like this in my practice (I'm a family law attorney in California and a Certified Family Law Specialist).

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Originally Posted by cadillac59

I'd resist the request and say you'd prefer an alternative care provider. If you have sole legal custody (and presumtively should if there's been a finding of DV -see Family Code section 3044) then you can make this decision yourself.

Review your current orders and see if you've got sole legal and see what they say about childcare. If he doesn't like it, let him file a motion for a modification and if he does ask for 271 sanctions (attorney fees, costs). I've seen a number of cases like this in my practice (I'm a family law attorney in California and a Certified Family Law Specialist).

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I was hoping you would come along - I could give general info but you certainly have the specifics.

BUT,, you never know what a judge will do, I have seen a know hooker who was proven to drink too much and leave kids alone win custody over a businessman who had a large home and more.

So first nothing is ever for sure.
At this pont, you said he does get some unsupervised park visits.
Why does he get some unsupervised and some supervised, that is sort of hard to justify the supervised if they also have unsupervised.

But while most likely he could not win, if they have a lot more money, can hire a lot more attorneys, money does not always make them win, but it can help.

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Originally Posted by Fr_Chuck

BUT,,, you never know what a judge will do, I have seen a know hooker who was proven to drink to much and leave kids alone win custody over a businessman who had a large home and more...

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And people wonder why I hate family court.

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Originally Posted by this8384

And people wonder why I hate family court.

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One of the things you should keep in mind is that economic considerations are not allowed to play into who has custody of kids (we have specific case law on this). I've had plenty of people try to tell me they should have custody (and I suppose by that they mean the majority of time with the kids) because they have a larger home, they have a pool in the backyard, and the kids can have their own bedrooms, and I am quick to tell them that none of that matters and cannot even be considered by the court and one reason is that we already have a really good solution to issues of economic disparity between parents. Guess what it's called? CHILD SUPPORT! (and maybe spousal support as well with married people). You have more you get to pay more- we spread the wealth around and equalize things. I've found when I put it this way people tend to understand.

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Originally Posted by cadillac59

One of the things you should keep in mind is that economic considerations are not allowed to play into who has custody of kids (we have specific case law on this). I've had plenty of people try to tell me they should have custody (and I suppose by that they mean the majority of time with the kids) because they have a larger home, they have a pool in the backyard, and the kids can have their own bedrooms, and I am quick to tell them that none of that matters and cannot even be considered by the court and one reason is that we already have a really good solution to issues of economic disparity between parents. Guess what it's called? CHILD SUPPORT! (and maybe spousal support as well with married people). You have more you get to pay more- we spread the wealth around and equalize things. I've found when I put it this way people tend to understand.

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I agree with you in that aspect. I was more referring to situations where it seems that the court makes the decision of "what's best for the child" and it's as if they never even looked at the case. As Fr_Chuck pointed out, an alcoholic prostitue who somehow manages to maintain custody... obviously, we don't have all the specifics of that particular case but I've seen family court be completely biased time and again.

Thanks for all of the responses. I really appreciate your insight.

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Originally Posted by cadillac59

I'd resist the request and say you'd prefer an alternative care provider. If you have sole legal custody (and presumtively should if there's been a finding of DV -see Family Code section 3044) then you can make this decision yourself.

Review your current orders and see if you've got sole legal and see what they say about childcare. If he doesn't like it, let him file a motion for a modification and if he does ask for 271 sanctions (attorney fees, costs). I've seen a number of cases like this in my practice (I'm a family law attorney in California and a Certified Family Law Specialist).

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Thanks for your input... I'm going to review all of our paperwork tonight. Our last TRO filing that was stamped by the judge stated that I had sole legal and physical custody. But I'm pretty confused. Our divorce case has yet to even be heard in court because my (still legal) husband hasn't responded to the papers my attorney filed served to him.

So, as far as you know, having a child in daycare does not reduce my rights or fit-ness as a parent? Just because he has someone at home that could take care of Thomas while he works and I have to put him in daycare while I work doesn't make me less of a worthy (legally at least) custodial parent right?

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Originally Posted by cadillac59

One of the things you should keep in mind is that economic considerations are not allowed to play into who has custody of kids (we have specific case law on this). I've had plenty of people try to tell me they should have custody (and I suppose by that they mean the majority of time with the kids) because they have a larger home, they have a pool in the backyard, and the kids can have their own bedrooms, and I am quick to tell them that none of that matters and cannot even be considered by the court and one reason is that we already have a really good solution to issues of economic disparity between parents. Guess what it's called? CHILD SUPPORT! (and maybe spousal support as well with married people). You have more you get to pay more- we spread the wealth around and equalize things. I've found when I put it this way people tend to understand.

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That was another area that scared me. They have a big six bedroom house in the suburbs and I'm in a little one bedroom.

He pays some child support but I was never eligible for alimony because I've always made more money than him even though he has the fancy college degree. I probably wouldn't have pursued it anyway because it didn't seem right to me to take his money just because I took his name. However, since he is living with his parents and they bring in about $300k a year, does that make a difference for what he should be paying in child support. He pays no rent and we paid his car off a few years ago. So he has very little in bills. Whereas I am supporting a full household - rent, utilities, car payment, insurance, groceries, daycare, etc.

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Originally Posted by cadillac59

One of the things you should keep in mind is that economic considerations are not allowed to play into who has custody of kids (we have specific case law on this). I've had plenty of people try to tell me they should have custody (and I suppose by that they mean the majority of time with the kids) because they have a larger home, they have a pool in the backyard, and the kids can have their own bedrooms, and I am quick to tell them that none of that matters and cannot even be considered by the court and one reason is that we already have a really good solution to issues of economic disparity between parents. Guess what it's called? CHILD SUPPORT! (and maybe spousal support as well with married people). You have more you get to pay more- we spread the wealth around and equalize things. I've found when I put it this way people tend to understand.

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Here Im going to have to disagree on the subject of child support being an equalizer. That at its best is a fantasy. The extremes of the scale have the most benefit from the child support tables as they are in Calif. Those that don't work or work for very little don't pay much and by percentage don't pay as much as others. Also at the other end of the scale there are caps placed into the system as to how much is paid for child support so they may not be paying the same percentage wise as those in the middle. Courts do not consider fully housing and other needs of those that must pay the support. Example: If a man makes $3,000 a month and is obligated to pay 50% of his gross to child support then his monthly take home is about $900.00 after taxes. That doesn't even pay for a studio apartment let alone eat and try to maintain a car or transportation to ensure visitation with his / her children. And that's a reality in family courts in California with most cases being a father ( ncp ) having every other weekend and the rest of the time with mom ( cp ). So as far as being equal that's not even close.

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Originally Posted by GirlWSlingshot

Thanks for all of the responses. I really appreciate your insight.




Thanks for your input... I'm going to review all of our paperwork tonight. Our last TRO filing that was stamped by the judge stated that I had sole legal and physical custody. But I'm pretty confused. Our divorce case has yet to even be heard in court because my (still legal) husband hasn't responded to the papers my attorney filed served to him.

So, as far as you know, having a child in daycare does not reduce my rights or fit-ness as a parent? Just because he has someone at home that could take care of Thomas while he works and I have to put him in daycare while I work doesn't make me less of a worthy (legally at least) custodial parent right?


That was another area that scared me. They have a big six bedroom house in the suburbs and I'm in a little one bedroom.

He pays some child support but I was never eligible for alimony because I've always made more money than him even though he has the fancy college degree. I probably wouldn't have pursued it anyway because it didn't seem right to me to take his money just because I took his name. However, since he is living with his parents and they bring in about $300k a year, does that make a difference for what he should be paying in child support. He pays no rent and we paid his car off a few years ago. So he has very little in bills. Whereas I am supporting a full household - rent, utilities, car payment, insurance, groceries, daycare, etc.

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Don't worry about your first question, the TRO will probably be consolidated with the disso if it's not been filed under the same case number.

Don't worry about your second question. The answer is no.

As to your third, that's a really good question. Right now the answer in California is maybe. We have one case (Stewart v. Gomez which is kind of old now) which says that the court can impute income to a parent in calculating child support by looking at subsidized living expenses, i.e. living rent-free some place, having someone give you a free car to use and so on. However, there is at least one other case (there might be a second, I can't recall), the reasoning of which I personally agree with, that says no, you can't do that. You can only impute income from employment-related benefits (you know, the company car, living in company housing, that sort of thing). So, the answer is we don't really have an answer yet to your question since there is a split of authority in California on that subject (I have a case right now where that's an issue and I don't know how the judge will rule). The argument against imputing income on what are really just gifts from other people (your husband's parents giving him a free place to live and a car) is that it is difficult to decide where to draw the line. In other words, if that is going to be the rule, why stop at free rent or a car? What about food (his mom made him dinner one night worth $5), he got a $100 gift certificate for Christmas, his mom cleans his clothes worth $1.00, and on and on. Why not add all this into the Dissomaster and call it husband's income in doing the support calculation? See, it could get absurd after a while.

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Originally Posted by cadillac59

Don't worry about your first question, the TRO will probably be consolidated with the disso if it's not been filed under the same case number.

Don't worry about your second question. The answer is no.

As to your third, that's a really good question. Right now the answer in California is maybe. We have one case (Stewart v. Gomez which is kind of old now) which says that the court can impute income to a parent in calculating child support by looking at subsidized living expenses, i.e., living rent-free some place, having someone give you a free car to use and so on. However, there is at least one other case (there might be a second, I can't recall), the reasoning of which I personally agree with, that says no, you can't do that. You can only impute income from employment-related benefits (you know, the company car, living in company housing, that sort of thing). So, the answer is we don't really have an answer yet to your question since there is a split of authority in California on that subject (I have a case right now where that's an issue and I don't know how the judge will rule). The argument against imputing income on what are really just gifts from other people (your husband's parents giving him a free place to live and a car) is that it is difficult to decide where to draw the line. In other words, if that is going to be the rule, why stop at free rent or a car? What about food (his mom made him dinner one night worth $5), he got a $100 gift certificate for Christmas, his mom cleans his clothes worth $1.00, and on and on. Why not add all this into the Dissomaster and call it husband's income in doing the support calculation? See, it could get absurd after a while.

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Here you can set precident on gift vs income. There is already a law on the books as to how much a gift can be to a person before it becomes income. Since it is part of established IRS codes and has its own titles then it has a clear difference from " income ".

Some gifts are tax exempt. To me that's where it all ends. Bottom line is it taxable ? If it is then how much can be taxed. If your allowed to gift $12,000 and your gifted $15,000 then the tax would be owed on $3,000. Since its established federal law it could take precident.

Reference:

The Gift Tax - TurboTax

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Originally Posted by califdadof3

Here you can set precident on gift vs income. There is already a law on the books as to how much a gift can be to a person before it becomes income. Since it is part of established IRS codes and has its own titles then it has a clear difference from " income ".

Some gifts are tax exempt. To me thats where it all ends. Bottom line is it taxable ? If it is then how much can be taxed. If your allowed to gift $12,000 and your gifted $15,000 then the tax would be owed on $3,000. Since its established federal law it could take precident.

Reference:

The Gift Tax - TurboTax

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No, there's no federal preemption on what is considered income for child support purposes. For federal taxation, sure, not child support. That's a state matter. Just like what the child support formula is.

And I don't think whether income is taxable or not is the issue. We consider all income, taxable and non-taxable for cs purposes. Only after you decide to use the rent-free housing or the free car and call them "income" for cs do you decide where to plug them into the Dissomaster. Since no one is going to declare either as income on a tax return, they would belong under non-taxable income. But again that doesn't answer the question of whether they should be considered income in the first place.

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Originally Posted by cadillac59

Don't worry about your first question, the TRO will probably be consolidated with the disso if it's not been filed under the same case number.

Don't worry about your second question. The answer is no.

As to your third, that's a really good question. Right now the answer in California is maybe. We have one case (Stewart v. Gomez which is kind of old now) which says that the court can impute income to a parent in calculating child support by looking at subsidized living expenses, i.e., living rent-free some place, having someone give you a free car to use and so on. However, there is at least one other case (there might be a second, I can't recall), the reasoning of which I personally agree with, that says no, you can't do that. You can only impute income from employment-related benefits (you know, the company car, living in company housing, that sort of thing). So, the answer is we don't really have an answer yet to your question since there is a split of authority in California on that subject (I have a case right now where that's an issue and I don't know how the judge will rule). The argument against imputing income on what are really just gifts from other people (your husband's parents giving him a free place to live and a car) is that it is difficult to decide where to draw the line. In other words, if that is going to be the rule, why stop at free rent or a car? What about food (his mom made him dinner one night worth $5), he got a $100 gift certificate for Christmas, his mom cleans his clothes worth $1.00, and on and on. Why not add all this into the Dissomaster and call it husband's income in doing the support calculation? See, it could get absurd after a while.

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That makes perfect sense. It is a very slippery slope. And I don't want to be petty. It's just frustrating that they calculate support based on my expenses and income, but on his end, only actual income.

Thanks for your input. I hope you don't mind the 20 questions too much, but I have another question. If one of the parties was living rent free with a boyfriend or girlfriend rather than the parents, would it make a difference?

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Originally Posted by GirlWSlingshot

That makes perfect sense. It is a very slippery slope. And I don't want to be petty. It's just frustrating that they calculate support based on my expenses and income, but on his end, only actual income.

Thanks for your input. I hope you don't mind the 20 questions too much, but I have another question. If one of the parties was living rent free with a boyfriend or girlfriend rather than the parents, would it make a difference?

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No, that's the same thing. It doesn't matter if the rent-free housing is from a boyfriend/girlfriend, family member.

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Originally Posted by cadillac59

No, that's the same thing. It doesn't matter if the rent-free housing is from a boyfriend/girlfriend, family member.

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Thank you thank you thank you for your patience and answers. I really appreciate it.