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.