How do I get emergency sole custody if the other parent is jail? We share sole custody but the other parent went to jail for committing domestic violence against their partner.

In a cus­tody case, the court may make what­ev­er tem­po­rary cus­tody order “seems nec­es­sary or prop­er.” All cus­tody deci­sions by the judge are root­ed in the child’s best inter­ests, with the pri­ma­ry con­cern being the child’s health, safe­ty and welfare.

If the fam­i­ly law court deter­mines that the par­ent in jail or prison com­mit­ted domes­tic vio­lence against the oth­er par­ty or the child (or child’s sib­lings) with­in the past five years, the incar­cer­at­ed par­ent will have to over­come a rebut­table pre­sump­tion that a sole or joint phys­i­cal or legal cus­tody award to the incar­cer­at­ed par­ent is detri­men­tal to the child’s best inter­est. The incar­cer­at­ed par­ent will have to prove to the court that there is no harm­ful impact on the child result­ing from the par­ent being in jail or prison.

If the oth­er par­ent is in jail because that par­ent com­mit­ted domes­tic vio­lence against a per­son oth­er than the oth­er par­ent or the child, the fact that the oth­er par­ent has been con­vict­ed of domes­tic vio­lence may still serve as a basis to file a motion seek­ing to change custody.

Fur­ther, where the incar­cer­at­ed par­ent is sub­ject to an emer­gency pro­tec­tive order, pro­tec­tive order or oth­er domes­tic vio­lence restrain­ing order, the child’s best inter­ests usu­al­ly will require that the cus­tody order care­ful­ly lim­it expo­sure to poten­tial con­flict or vio­lence to ensure the safe­ty of all fam­i­ly mem­bers. In oth­er words, if the oth­er par­ent who is incar­cer­at­ed has an emer­gency pro­tec­tive order, pro­tec­tive order or oth­er domes­tic vio­lence restrain­ing order against him or her, the judge will usu­al­ly stop or severe­ly lim­it vis­i­ta­tion and cus­tody, at least temporarily.

If there is a final judg­ment, such as in a dis­so­lu­tion or divorce case, you can file a motion to mod­i­fy by argu­ing that the incar­cer­at­ed parent’s con­vic­tion is a sub­stan­tial change in cir­cum­stances affect­ing the child’s best inter­est, and argue that mod­i­fi­ca­tion is “essen­tial or expe­di­ent” for the child’s welfare.

In prac­ti­cal terms, you can file a motion to mod­i­fy, with an emer­gency domes­tic vio­lence restrain­ing order, and ask the court to pro­tect you and your child from the incar­cer­at­ed par­ent. You can also file the motion to mod­i­fy cus­tody on an emer­gency basis (called an ex parte appli­ca­tion), which short­ens the notice that you are required to give the oth­er par­ent. If the oth­er par­ent is incar­cer­at­ed, how­ev­er, there may not be an immi­nent threat of seri­ous bod­i­ly injury nec­es­sary to jus­ti­fy such an emer­gency motion.

My child’s father has not been paying child support for several months. My child mentioned to me that the father goes to work everyday. I think the father is working under the table. What do I do?

There are sev­er­al things you can do. Assum­ing there is a court order for child sup­port, you can file a motion for con­tempt against the father. In a motion for con­tempt, you are ask­ing the court to pun­ish the father for his fail­ure to fol­low the court’s order to pay child sup­port. Each month that the father has missed a child sup­port pay­ment forms a sep­a­rate “count” or basis for con­tempt. If some­one is found to be in con­tempt of court, that per­son can be fined up to $1,000 and/or impris­oned for up to five days for each count of con­tempt. In many cas­es, how­ev­er, the par­ent who is sup­posed to pay child sup­port will work out an agree­ment with the oth­er par­ent to pay off the back due support.

You can also con­duct finan­cial “dis­cov­ery” against the father. Cal­i­for­nia Fam­i­ly Code Sec­tions 3664 and 3665 allows you to serve the father with a request for pro­duc­tion of an income and expense dec­la­ra­tion after judg­ment (includ­ing the oth­er party’s last-filed state and fed­er­al Income Tax Returns] once a year, after a final judgment.

Fur­ther, Fam­i­ly Code Sec­tion 3666 pro­vides that, if the Court finds that the income and expense dec­la­ra­tion sub­mit­ted by the respond­ing par­ty was incom­plete, inac­cu­rate, or miss­ing the pri­or year’s fed­er­al and state income tax returns, or that the income and expense dec­la­ra­tion was not sub­mit­ted in good faith, the Court may impose mon­e­tary sanc­tions against the respond­ing par­ty in the form of pay­ment of all costs of the motion, includ­ing the fil­ing fee and the costs of the depo­si­tions and sub­poe­nas nec­es­sary to obtain com­plete and accu­rate information.

After you file a request for an order mod­i­fy­ing sup­port, you can also ask the Court to allow you to con­duct addi­tion­al dis­cov­ery. If you believe that the father is work­ing “under the table,” you might con­vince the Court to allow you to obtain the father’s bank records, which would show deposits into the father’s account.

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