Results of first move away hearing in California.

[spacecowboydad]

See my previous post here:

viewtopic.php?f=5&t=39840

So I had the move away hearing yesterday. Judge stated that because I don't have at least 40% < parenting time >, mom is free to move as she pleases and that I have an uphill battle to fight. Fine, I'll do anything to stay in my daughter's life. That was the bad news from the hearing.

Good news, my lawyer brought up the fact that NJ has already moved without permission and pulled her out of school. Judge also told NJ that study after study has shown that when a child loses a parent (me) there can be severe detrimental affects. Judge for now, has denied her request to move away and ordered us to mediation. NJ's < lunkhead > admitted in court that she did move and that she expected me to drive all the way up there for my parenting time. The judge put a stop to that quickly and informed her that I had no reason to drive up to her new home since she was the one that moved.


My ex has no class and spent the whole hearing mouthing off and making jokes about me. I kept my cool and had my lawyer present my case. Hopefully everything works out.

[lohe]

Sounds like a good first step.
Keep at it, she'll dig her own grave!

[Outis]

So I had the move away hearing yesterday. Judge stated that because I don't have at least 40% < parenting time >, mom is free to move as she pleases and that I have an uphill battle to fight. Fine, I'll do anything to stay in my daughter's life. That was the bad news from the hearing.

Let's clarify those first few statements, here.
1. Mom is always free to move as she pleases, regardless of your parenting time or hers. California strictly enforces the federal right to live where you please (interstate commerce, I want to say is how they reference it). Case law, and California code, acknowledge that she has the live where she wants, subject to the powers of the court to restrict her changing your daughter's residence. This needs to be pointed out.
2. As expressed via PM, though I'll expand in more detail here, the 40% issue is relative to joint physical custody (40% being basically the minimum to be considered joint). With joint, you simply have to show that a change in residence in your daughter's best interest. Without joint*, you have to show that a move is detrimental, and as such, a change in residence is in your daughter's best interest. The landmark Supreme Court case here is Burgess from 1996, with clarification provided in LaMusga in 2004.
3. Uphill, but not impossible to win. Keep fighting!
[* Caveat - In Condon, the father had minimal time with his son, about 28% (pretty sure it's Condon, if not, I'll clarify). However, the Court determined their arrangement was joint, because he saw his son 4 or 5 times a week. He didn't have overnights on those days, but he saw his son in the afternoon for an hour so 4 or 5 times a week. Very important caveat to what constitutes joint, as I'm not intimately familiar with your daily dealings.]

Good news, my lawyer brought up the fact that NJ has already moved without permission and pulled her out of school.

Contemptable action, and in violation of your joint legal. Mother treats your joint legal custody with callous disregard.

Judge also told NJ that study after study has shown that when a child loses a parent (me) there can be severe detrimental affects. Judge for now, has denied her request to move away and ordered us to mediation.

Excellent news for now!

For move-away cases, and various findings and issues to present in court, check out:
Burgess, 1996, Supreme Court
LaMusga, 2004, Supreme Court
Brody v Kroll (can't remember dates or appellate v. supreme on the rest)
Condon
Melville (court slammed the mother repeatedly here, and there are similarities)
Cassidy v. Signorelli (mother's move was found to be whimsical, which made me chuckle)
And there are about 7 or 8 others that I can't recall off the top of my head.

Review those 8 factors of detriment in LaMusga, and prove the 6 that will apply. Documented evidence of those 6 factors is best.

Also, there's the issue of the faith of the move, which basically boils down to: Is she moving, in whole or in part, in an attempt to minimize your time with your daughter? That's huge if you can prove that!

Anyway, there's some info for now. I'll post links to the above cases and other info tomorrow. That will keep you busy reading for a few days though.

With those cases, I went through and highlighted the similarities. Whimsical move. Mother doesn't communicate with father. Move lacks good faith (and Melville specifically says that an affection for a particularly community and a desire for a lower cost don't constitute good faith).

Anyway, I'm rambling and it isn't organized. Give a shout with specific questions or if you need any more help.

[spacecowboydad]

Some great information here! Once again, thank you very much. One great, GREAT, point you brought up is besides moving, she's also asking the court to reduce my time down to four days a month. My lawyer already stated in our response that due to mother's past behavior she is not likely to foster a father/daughter relationship and has and will continue to be a poor gate-keeper.

Did you read my previous post? Mother has already moved twice to the area for it's supposed lower cost of living and to "get her life together". Both times she did nothing but live off of welfare. I forgot to mention, she got a talking to from the judge when my lawyer brought up that she had already moved without permission. Ex stated that she expected me to drive almost 300 miles to her new home for pick-ups. Judge basically said that was stupid and said, why does he need to drive up there when it's your decision to move and ALSO she moved without permission from the court.

[Outis]

The more that comes out, the more it sounds like you have a decent case. What does your lawyer think?

Facilitation of < parenting time > was a big point in Melville. The appellate court quoted the trial court's findings at length, and the mother's refusal to foster communication between child and dad, and additional time with dad, were pretty big factors in the decision.

As to the reduction of your time...sorry, man, it's not a major point. In your case, when you don't have joint, the court will feel that make-up time in the summer and breaks is sufficient. Well, for the most part, at least. Depending on your mid-week time, I guess. It's a factor, yes, but not a major one. Just use it to support the rest of the factors. Don't rely too much on that sole issue.

As for the other moves, yeah, that's big. Having the judge reprimand her is great. Here's a story from my case:

Judge got a bit pissy with the ex for a particular issue. I loved it. Next court date, it seemed the roles were reversed, and I was suddenly on the naughty list. I had requested a continuance for discovery issues (so the ex could respond to my requests), and the judge just wasn't liking it at all. I tried a few arguments, and was going nowhere, fast. Pulled out my little ace in the hole. "Your Honor, I'm sure you remember that this move-away comes within months of the final judgment, and Mother was looking for alternative housing within 30 days of Your Honor's signature on that judgment." Bam, continuance granted.

You now have an issue that the judge is a bit irked over. Make sure it's brought up at every court date, and in every single paper that the judge sees. Casual references are great, just keep reminding him when he needs to be reminded.

[spacecowboydad]

My lawyer thinks we have a good shot, I really doubt she would have taken the case without feeling that I'd have a chance.

I understand what you're saying regarding reduction of my time, but NJ has already asked several times to different judges to reduce my time and each and every time she was denied. Hopefully this continues to be the case.

Two things I also wanted to bring up, and I did in my responsive declaration to the judge, was the fact that my daughter is being held back in kindergarten for another year due to being behind academically compared to other children her age. Second thing, daughter is underweight and "failing the thrive" according to her pediatrician. I cited lack of stability on mother's part as a big factor in both of these situations and why my daughter is not thriving in her care. I was able to get a doctor's and teacher's notes stating that it would be best for our daughter to stay in the same school environment so she can catch up. Don't know how much weight this will carry, but I guess every little bit helps.

Side note: NJ has been bombarding our daughter's pediatrician with threatening phone calls, threatening to sue and yelling at the doctor and her receptionists for releasing our daughter's medical records to me. I actually brought a copy of our parenting plan to the doctor's so she could make a record showing that I am allowed to obtain medical records. What a psycho.

[Outis]

Holy cow, dude.

OK, you've got a lot. Look at the separate issues:
1. Constant attempts to minimize your time
2. Educational concerns
3. Medical concerns
4. Changes in environment
5. NJ doesn't want you being a part of medical issues (and this is not a side note!)

Obviously, the list is much longer, but look at these strictly in the last post of yours.

Each individual one is an issue on it's own. Each one is important, as an individual item of concern for the best interest of your daughter, as well as for a tactical approach in court.

Collectively, they paint a very telling picture.

However, weave a constant theme into them: NJ attempts to frustrate the court order and your daughter's interest in co-parenting at each an every opportunity.

I'm telling you, man, there are two major things you need to do:
1. Read the Burgess decision until you know it inside and out.
2. Read the LaMusga decision until you know it better than Burgess.

You'll gain an excellent understanding of the important issues that the court MUST consider, as case law is controlling. LaMusga outlines the 8 factors of detriment, and you can start to line all of these issues up to support more than one factor, with the overall running theme of frustration of < parenting time >. (I know < parenting time > isn't preferred, but in this instance I use it as it is used in case law and controlling doctrine.) Frustration is a major, major issue in move-away cases, and you're piling it up in spades. Seriously, read up on it and understand the importance of it. You do have an uphill battle, yes, but it's one that can absolutely be surmounted.

[spacecowboydad]

Just wanted to give an update since I just had a Judicial Custody Conference. The judge still has not changed any orders and my ex is still ordered to bring my daughter back to the county for exchanges. NJ is now offering me 4 extra overnights starting from Friday all the way to Sunday night every week and she's offering to drive both ways. The reason is because my daughter starts school soon.

Should I take that offer? I want the extra time, but I'm hesitant to allow my daughter to go to school near her mom's house because it would allow the ex to establish status quo, also my daughter is being held back a year and I feel it would be beneficial for her to stay in the same school environment.

[Trevor]

Dude, based on all the information I just read, and the judge pointing out that you have less than 40% parenting time, WTF aren't you filing to increase your parenting time, citing ALL THIS STUFF, rather than the mere effort to prevent the child from being moved away? WHY? Is the judge trying to TELL you something? Sayin'.

[spacecowboydad]

My lawyer has already filed and asked the courts for more time. This whole thing is a nightmare and feels like it will never end. Also considering she moved without permission and doesn't have a job I feel like I should have primary custody and not just more < parenting time > time.