It’s a sad reality when the person that should be a child’s protector is not protecting the child. Unfortunately, the justice system is flawed, not only because they don’t know every aspect of the situation behind closed doors, but because there are a set of guidelines that hinder the right decisions sometimes. Below, we explain a common situation that deals with when the Family Court makes questionable child custody order. Should you contest the order?
Custody is a complicated area of law. Our main page regarding child custody and all that it entails can be found here. For an even deeper look, learn more about the different types of child custody arrangements that the Court may order by visiting this page.
Questions on Custody
Question: My child’s mother had been in jail and has gone through drug abuse rehab in the past. She has been sober for just 1 year, but was given joint child custody of our daughter. I’m not fully comfortable with leaving my daughter with her without supervision, yet. I feel like she would expose our daughter to some things in her life that she is still needing to change. What can I do?
This is a difficult situation. As a good parent, you don’t want to turn your child against her mom but you also don’t want to put your child in any sort of danger either. When someone does something that lands them in jail or has become unpredictable because of an addiction, it’s not uncommon, nor is it wrong, to lose trust in that person. You may feel that your daughter’s mom abandoned her when she made those bad choices in the past. You probably need a while longer to trust in your child’s mother again, especially when it comes to dealing with your daughter’s well-being.
So, what can you do if the court has already awarded shared custody rights to the mother? She probably doesn’t have full-custody, but even the little alone time she has with your daughter has you reasonably worried. First, let’s look at what the California family court actually looks at to determine custody arrangements:
- If the parents are cooperative, can agree and communicate with each other
- Each parent’s willingness to accept custody
- Any history of unwillingness to allow visitation (that is not based on substantiated abuse)
- The child’s relationship with either parent
- Any history of domestic violence
- Whether the child and either parent would be safe around the other parent
- If the child is old enough, his/her preference is considered
- The child’s needs
- How stable the home environment would be with either parent
- The quality and continuation of the child’s education if living with either parent
- The distance between the parents’ homes
- The number of children and how old they are
When the family court makes a child custody order, both parents must comply. You cannot deny the mother time with the child on the days that she is supposed to have custody. Just because you don’t trust the mother does not mean that the courts will see it the same way. If the mother was active and involved in your daughter’s life before going to jail and rehab, then the courts likely took that into consideration and supports her continued involvement now. They have also considered the welfare and safety of the child; however, courts don’t know the mother like you probably do. That means that the court may have wrongly given custody.
If you think that the court shouldn’t have given custody time to the child’s mother, then you are allowed to contest the child custody order. Requests for modifications of child custody orders are difficult, to say the least, when a judge has already made a decision. However, the top priority of the state in these cases is to ensure the child’s best interest and well-being.
What does contesting a child custody order entail?
When you want to change a custody order that the judge already made, you can put in a request for the judge to look at the case again. You may get another chance to present your case as to why you don’t think the child’s mother is fit to have unsupervised custody of the child. When you ask the court for a change, this is called a “modification” to the child custody order. Not every appeal is going to be heard in court. According to Family Law Code, § 3022, § 3087,
“The court may, during the pendency of a proceeding or at any time thereafter, make an order for the custody of a child during minority that seems necessary or proper.”
“An order for joint custody may be modified or terminated upon the petition of one or both parents or on the court’s own motion if it is shown that the best interest of the child requires modification or termination of the order. If either parent opposes the modification or termination order, the court shall state in its decision the reasons for modification or termination of the joint custody order.”
Essentially, a request for modification may be considered if:
- There is a significant change in circumstances of either parent or as the child’s needs changes
- If the child’s best interest, including safety, is in question
What Are Your Chances?
You would need to provide evidence as to why your daughter would be in danger. Unfortunately, this is not easy to prove if no abuse has happened previously. Just having a feeling of distrust towards the child’s mother is not enough for a court to reverse their decisions or to make modifications. Although it is difficult to persuade a judge that the mother’s environment is not safe for your child at this time, it isn’t impossible. Every situation is different, so we can’t tell you that you have a good chance of getting these child custody order modified. You should talk to a good family attorney immediately, as this process does take time and if your child is truly in danger, you want this case to be looked at as soon as possible.