So not only has your wife/husband left your marriage high and dry, but your ex already has a new boyfriend or girlfriend who is just plain bad news. Perhaps the new boyfriend/girlfriend is an ex-convict, does illegal drugs, is involved in an inappropriate lifestyle or is simply not a good influence to your children. The last thing you are going to want is for that new significant other to be hanging around your kids, and possibly living under the same roof as them, when your ex-spouse has custody of the kids. So what can you do in this type of situation to protect your beloved children from this potential physical and/or emotional risk?
You first need to consider whether you are simply just upset that your ex has already moved on, and thus you are looking for revenge by requesting more custody of the kids, or if your ex’s new boyfriend/girlfriend actually poses a physical or emotional risk to your kids’ health, safety and welfare. If the latter is the case, then you may consider asking the court to award sole physical custody of the children to you.
When making a custody order, the court looks at what is in the best interest of the child. California Family Code Section 3011(b)(3) states that the court shall consider the health, safety and welfare of the child when determining what is in the best interest of the child. Thus, if your ex is allowing the new boyfriend/girlfriend to spend time alone with the kids and as a result the children are being significantly negatively affected on a physical or emotional level, then perhaps the court will find that the children’s health, safety or welfare would be at risk if left in your ex’s custody. Or perhaps your ex’s new boyfriend/girlfriend has affected your ex’s ability to properly care for the children. Whatever the situation may be, you will need to prove to the court how the children’s health, safety and welfare would be at risk if left in your ex’s physical custody.
Even if your divorce is already final and custody orders are already in place, the California family law court has continuing jurisdiction over custody matters. According to Family Code Section 3022, custody orders are generally modifiable whenever the court finds that a modification is “necessary or proper” in the child’s best interest. If you have a “permanent” custody order then you may be required to show a significant change of circumstances such that custody modification is essential to the children’s welfare. In any case, if your divorce is already over and custody orders are already in place, then one possible solution is ask the Court to modify the current custody orders to give your ex-spouse less time with the children.
We understand that this is a sensitive situation that could greatly affect your family and your relationship with your children, and our team can provide you with the caring and outstanding legal counsel you need and deserve. If you would like to discuss your rights under California’s child custody laws, we encourage you to contact us as soon as possible.
Shannon B. Miles, a Certified Family Law Specialist (CFLS) is also an accredited and accomplished San Diego lawyer at The Law Offices of Nancy J Bickford . Please call 858-793-8884 to understand how she can help your child custody battle begin and end with you keeping your kids where they belong: With you.