Would do i need to do to make a case for modification of custody?

I have a court order of joint legal and physical custody of my 4 year old son. My ex has broken the court order a few times; I’ve had to file police report because she was denying my visitation rights. I’ve asked her for immunization records but have only received outdated ones. I’ve gone and gotten my own where it shows she’s been taking my son to get his needed shots but won’t tell me when or denies ever taking him, which violates court order as well. There’s also been a few times when I have picked him up from her house and he’s had bad bruises and scars on his face. I believe she is reckless and doesn’t pay too much attention to him. Can I become primary custodian.

Asked on December 10, 2012 under Family Law, California


Cameron Norris, Esq. / Law Office of Gary W. Norris

Answered 8 years ago | Contributor

You can try.  If there is a final judgment, then you would need to show a "substantial change in circumstances," according to Montenegro v. Diaz, but it sounds like things have been changing. 

CA law favors the party that facilitates frequent and continuing contact with the non-custodial parent, so that should help you.  See Family Code Sec. 3040. 

I would recommend filing a request for order seeking a modification of custody.  If you want to be a jerk--you could file an order to show cause and affidavit for contempt (FL-410), trying to get the court to find her in contempt of the current order, and then seek a request for order seeking a modification of custody afterwards.  But, it is kind of a jerk move.

I would recommend consulting with a local family law attorney if you can afford one.

Best of luck.

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