Against All Odds

 A number of months back I wrote an article on the topic of winning a legal matter against all odds. At the time that article was written, we had not actually won.  The case involved a bitter custody dispute and we had received a very positive evaluation from the custody evaluator.  Mom wanted to move away more than 1500 miles with their young children.  Dad had both a criminal conviction for domestic violence as well as a domestic violence restraining order after hearing issued against him within the last five years. There is a presumption under the Family Code that an award of sole or joint physical or legal custody of a child to a person who has perpetrated domestic violence during the five year period is detrimental to the best interest of the child.  A presumption is not conclusive and may be rebutted.  Under the statute, it may only be rebutted by a preponderance of the evidence. When we mediated the case, the mediator told my client essentially that there was no way he could win and that his best bet was to negotiate for more time in the summer and withdraw his opposition to the move away request. In all of my years of litigating, I have never had a mediator tell my client that he or she should just give up, which is essentially what this particular mediator was wholeheartedly recommending.  And there is no doubt that he believed he was best advising my client due to cost and the probability of prevailing.
After months of battling it out in the courtroom, the Court recently adopted the findings made by the evaluator and determined that if mom was to move, the children should stay with dad and that dad had overcome the presumption mentioned above.  In other words, it was in the best interest of the children to stay with dad if mom were to move.  It is important to note that a court cannot restrain the parent wishing to move from actually moving.  So if you plan to move with your children, the court prohibit you from moving.  But it can issue an order stating that if you move, custody will be given to the parenting remaining in California which is what happened in this case.
Like the Phil Collins song, our mediator saw our chance of success as being “against all odds.”  But as Phil Collins sings, it’s a chance we had to take.
For all of your family law and business law needs, please contact the Law Offices of Richard A. Marcus at 661-257-8877.