Legal Question in Family Law in California
My husband and I are going through a custody battle in which temporay orders were passed in December. The orders are that we get my husband's son (who is seven) on the 1st 3rd and 5th weekend of the month and that extends to a monday on legal holidays. The ex-girlfriend was originally going for one weekend a month. She does everything she possibly can to make sure that we get as little time with my husband's son (Jay) as possible. Every weekends that Jay has been with us since the orders were passed, she has tried to change the plans by wanting to pick him up a day early or by falsely stating that he is sick. She calls and calls him and brings the poor kid to tears nearly everytime she calls because she cries and says things like he doesn't love her and says that we are keeping him from his mother. She makes him believe he's going to be in trouble because he doesn't want to go back before he is supposed to. She even sent him with a cell phone that she said he had to have with him at all times so she can keep tabs on him. She calls and interrogates him in spanish so we cannot understand what shes asking him and saying against us. Jay tells us bits and pieces of what was said and she asks where he is, what he's doing, who he's with and if I'm with him. she tells him to stay away from me and she doesn't want him getting close to me. My husband and I told him that he needs to speak in english when he talks to her, one cuz it's rude, and two he ends up in tears, therefore we need to know what is going on and what is being said to him to upset him so much. She told him that we are discriminating against him and we are not allowed to tell him that. I would think that our rules apply in our own house not her rules, right? I mean, this can't be allowed, for her to keep harrassing him like this and ruin his whole weekend (which is what she is trying to do) can it?
1 Answer from Attorneys
Your husband is obliged to follow the orders. It's up to him to decide whether or not to grant the mother's requests that are outside the scope of the orders.
Your husband has control over whether or not he gives Jay back to his mother earlier than the court order requires. If your husband is capable of looking after Jay when he is sick then he should insist on doing so.
Some orders give definite times and conditions under which telephone contact will ocurr. Such an order is probably appropriate in your case and he should ask for one the next time he is in court on custody and visitation issues. If there is no order regarding telephone contact - your husband has complete control of how much telephone contact there is when Jay is in his custody and the mother has complete control of how much telephone contact there is when Jay is in her custody. The expectation is that both parties will be reasonable.
Requiring a child to keep a cell phone so that he can be tracked when in the other parents custody, would not be ordered by the court, as it is getting pretty close to stalking.
It does not make any difference what language mother and son communicate in, the court if asked, would rule to allow them privacy when talking on the phone. The same applies when Jay is at her house talking to Dad on the phone.
If I was your husband, I would try to learn Spanish - not to listen in to phone conversations but to be able to share more with his son.
If after attempting to make the current court orders work; the other party is still not complying with the orders, your husband should go back to court asking for more definitive orders and anything else that he would like to change about the current orders.
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