Legal Question in Family Law in California

My husband and I have been together for over 7 years now. He and his exwife have 4 children together. His ex wife is remarried and has a son with her new husband. For the 7 years I have been in this family they have been fighting over custody, he believes they should both be in the kids lives and she believes she should have sole legal and physical and that he should have no contact with the kids. Currently they have joint legal and joint physical custody.

On May 29 2011, while in the mothers custody my husbands 6 year old little girl was shot and killed by his exwife and her husbands 2 year old son. The childrens stepfather had neglected to lock up a semi automatic firearm, fully loaded and the 2 year old found it under the bed. The stepfather recieved a felony neglect storage of a firearm and then recieved another felony a month later for violation of probation for having ammo in the home. Even given what his exwife has always tried to do, take away the kids, my husband could have did a restraining order and taken the kids from her, but he didnt. He felt it was in the best interest of the children to have the influence of mom and dad in their life. Both the exwife and stepdad knew the gun was under the bed. There was a total of 2 loaded unsecured guns in the home and 53 total guns in the home. None of this was know by my husband.

Currently my husband remaining children with his ex are 14, 11, and 9. My husband and I also have four children ages 5, 3, 2, and 5 months. My husbands oldest is a boy who has blames himself for the death of his little sister (even though he was not home when it happened) and has been having severe lashout attitudes and complete disrespect....breaking things as well. On September 30, my husband sat in the room and was having a talk with him about respecting his parents, again was being completely disrespectful. So my husband I guess knocked him off the bed with his foot and then sent him to put his head on the wall. Cant spank because there is a no corporal punishment in the custody order. This was a sunday, the next day the children went to the mothers home where she, being the one who is always looking for a way to take the children away, took the boy to the emergency room and told them he was assulted and that the boys father had kicked him in the ribs. There was no bruising, just the boy saying that it hurt. His ex filed a emergency restraining order against my husband and his son. It was for 7 days and set to expire the day before our next custody day. CPS called my husband and cleared him saying that his son was safe to come over our home and to pick him up the wednesday after school. They didnt even feel as thought there was a case to do a home visit. Then the day before our custody the mother called CPS again saying that my husbands son was scared that he would get in trouble. So the ex wife went out and filed a temporary restraining order. Court is set for Oct 31. CPS came to our home and again cleared us and our home and interviewed all the children. No red flags and no worries, case has been closed.

We have continued custody of the other 2 kids but havent seen the boy this whole month. This woman doesnt care about the psycological damages she is causing to my 4 kids and all 3 of my husbands kids. She also filed for a custody court date to get full custody of all 3 kids and with no visitation to their father. She is responsible for the death of my husbands 6 year old little girl, her husband got 2 felonies and my husband could look past all his anger. Her son gets pissed because he got in trouble and doesnt want to come back and she files a restraining order and files for full custody. Am I the only that seems wrong to??

Also real quick, a week before his sister was shot, the boy called my husband while in the custody of his mom saying he hated her and didnt want to be there anymore...his ex was screaming in the background take him, you can have him, I'm done with him. Then the ex proceedeed to come on the phone and tell my husband he needed to back her up as a parent and tell his son not to run away from his problems, and my husband did just that. Before my husband little girl was killed at the mom house, my husband had less than 43% custody and after she was killed they switched to a 50/50 arrangement, but was never put on paper. 1. My first question,is there anything legally he can do now to get custody of his children?

2. What should we do, are we legally able to file full custody for the girls?

3. Does she have grounds for a restraining order?

4. If she thinks the kids should not be in custody with their dad will it hurt her in court that she didnt resort back to the custody on the court order but continued to let the girls come over here 50/50

5. Any additional advise that we should do?


Asked on 10/26/12, 5:37 pm

1 Answer from Attorneys

Your husband is a saint and his children are blessed to have him for a dad. Being the wife of a saint, on the other hand, is incredibly trying at best. Unfortunately your situation is WAY too complex to deal with in an internet Q&A format. Really and truly the best I can tell you is to go see a local family law attorney in person.

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Answered on 10/26/12, 6:15 pm


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