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Main Forums => Visitation Issues => Topic started by: gabes_mom on Sep 24, 2007, 10:05:25 AM

Title: Interstate Visitation Questions
Post by: gabes_mom on Sep 24, 2007, 10:05:25 AM
Background first:

In 2004 DH and BM went to court about the BM relocating the children out of state over 500 miles (one way) from their home state and town. The Judge at that time decided that the move was allowed and thru that set in motion all the problems.

The kids are SD 8 and SS 6. They live in PA we live in NC. NC still holds jurisdiction over case.

Current Problem:

I received an email from the BM stating that her husband got a job in Texas and she and the kids will be moving from their home in PA to Wisconsin until January. After January she will move the kids down to Texas where their step father is living for however long he has this job.

Because of this move visitation is now put into question. We used to meet halfway which was a 4 hr drive one way for each of us. So meeting wasn't too bad during the Thanksgiving, Christmas, Easter, and Summer visitation times.

But obviously that won't work now because the miles have DOUBLED with her move to Wisconsin and then TRIPLED when she moves the kids to Texas.

It's not realistic for us to expect children to travel for such a long period of time during the shorter holidays (like thanksgiving, christmas and easter) when we only have them for 4 days. Much of their vacation time would be spent traveling.

During the summer when Dh's visitation is longer it would be more realistic to seek/enforce visitation with the kids.  

My questions are:
1) What is a standard interstate visitation arrangement for School aged children?

2)Who generally is expected to pay for the plane tickets ?
(b/c meeting halfway is no longer feaseable it would take too long and in the end cost more then flying)

Any advice or suggestions are greatly appreciated.
Title: RE: Interstate Visitation Questions
Post by: MixedBag on Sep 24, 2007, 12:26:49 PM
I'm not sure there is a "standard"...

I think your first step is to research flight availability and whether it's really feasible for flying over a weekend back to NC.  Like check out USAirways who hubs out of Charlotte and see how flights to WI and TX would work out.

I think since she moved away, she should have to shoulder the cost of the tickets.

I moved (active duty military at the time) and shouldered the cost and EX (at first) agreed to reduced CS.  Then he went back on his agreement (IMHO, o.k.?  because he would disagree).

However, currently, I agreed to reduced CS, and EX pays for airline tickets.  

During negotiations with EX about time with our son, I agreed to this:

Thanksgiving/Spring Break (Easter):  Son gets Thanksgiving with Dad, and Spring Break/Easter with Mom.  (For others, I recommend alternating between these two holidays.)

Christmas:  Alternating between one week to include Christmas and one week NOT to include Christmas.  Break is approx 14 days long, so son will get 7 days with each of us but the days here with me will be split up.  EX would not agree to "first week/second week" being defined.

Summer:  It's 10 weeks long, so son is spending the first 5 weeks with Dad, and the rest with mom.  

Son is also allowed one weekend a month with dad where I have agreed to take him to the airport and let him fly north.  If it's a 3-day weekend, I have agreed to allow the Mon/Fri to be included.  Dad must give me 2 weeks notice and Dad must pay for airline ticket to make it happen.  Dad may not choose Mother's Day weekend in May.

When I was NCP, it was very similar except:

I did not alternate Christmas holidays like we are doing now.  I alternated with one week over Thanksgiving, Christmas, Easter.

Summer was half -- 6 weeks.

Weekends never included a 3 day holiday unless I used one of my "annual 6 weeks" as a day.
Title: RE: Interstate Visitation Questions
Post by: mistoffolees on Sep 24, 2007, 12:42:18 PM
1. I'm also not aware of a standard.

2. I would suggest that you negotiate it - preferably with the help of a mediator. If you can't reach an agreement, the judge will tell you how to split the cost - and it's likely to be arbitrary.

With the mobility of people in today's workforce, this is a common situation and most judges probably have a way that they handle it, even if it's not standard for the entire state or district.

From PA to TX, there's almost zero chance that the kids will be driving, at least for shorter holiday periods. Rather, they'll undoubtedly be flying.

With reduced airfare costs (even with the modest unaccompanied minor fee), you may well find that air travel won't cost much more than driving 500 miles and hotel rooms, meals, etc.


Title: RE: Interstate Visitation Questions
Post by: gabes_mom on Sep 24, 2007, 02:36:07 PM
We actually live in NC and they are moving from PA to TX.

Here's what we have placed before her to think about.

She gets the kids every Thanksgiving.

Christmas to be alternated: she gets odd years we get even years starting from the first day of vacation to the last day of vacation.

She gets them every Spring/Easter break.

We get them for 5 wks in the summer


~~ Since she is the one moving from one state to another all over the USA she should pay 75% of the airfare and DH pay 25% of the airfare. If they chose to drive she should drive 75% of the way and dh should drive 25%.

I looked at a couple airlines, looks like it would be easier to fly and by far cheaper to fly them. I just hope that she agrees to this.

BTW this was emailed to her so when we go to court (if for nothing else then to make it a court order instead of a verbal/written agreement) it can be proved that we are working on making this work not trying to start a battle every chance we get.

Thankfully where we live still holds jurisdiction of the children's cases.
Title: RE: Interstate Visitation Questions
Post by: Kitty C. on Sep 24, 2007, 02:43:07 PM
I don't believe there's a standard, but I can tell you what we worked out between CA and IA.

Because of the age of your children, they will have to fly non-stop (no change of planes) until they are both at least 8 or 9.  At least that's what it was when DS flew unaccompanied.  Also, remember that if they fly unaccompanied, the additional charges are ONLY for one way....you have to pay that fee for both flights AND for both kids.  Say if the UAM fee is $60, you can expect to pay $240 ON TOP OF the regular cost of 2 tickets.

One definite thing to keep in mind, tho.  You must take this to court, because this changes EVERYTHING.  If the BM is the one moving away, she should be the one bearing the burden of the majority of the travel costs, no matter how the children are transported.  Many judges have ruled that the parent moving must incur the cost of transporting the kids, but since we're talking spending hundreds of dollars each time the children come to see you, you probably should and will bear part of that burden.

As for a schedule, a lot depends on what you can negotiate with the BM.  If the kids have enough time off from school at Thanksgiving, Christmas, and/or spring break (and you and BM can afford that often), then it's not unreasonable to ask for that.  In our case, DS saw his dad in CA every other Christmas and every summer, all summer long.  Our school district only has 4 days at Thanksgiving and they don't have spring break, so Christmas and summers were all we had to work with, plus that's all DS's dad and I could afford at the time.

Something else to keep in mind.......something that Mist mentioned in another post/forum.  Make sure you have an atty. and try to find out how the atty. feels the judge will rule.  There's a possibility that the judge will tell the BM that she's free to move if she wants, but what she's planning with these moves (and the upheavals they could create for the kids), the judge may feel that it's too much for the kids, especially with the temp. move to WI.  BTW, does she have a legitimate reason for that?  Why not move directly to TX and save the kids the havoc of changing schools and making friends twice?  Especially since they probably will not want to make friends in WI, since they only have to say goodbye in a few months.  It will all depend on the judge and how much he/she is willing to put the kids through.........if he/she is not will ing to do that to them, he/she may tell the BM she can move if she wants, but the kids will stay with Dad, so as not to cause any more chaos in their lives.  It's always a possibility.............

But above all else, this must go back to court (BEFORE she moves), or you AND the kids will get royally screwed.........
Title: RE: Interstate Visitation Questions
Post by: janM on Sep 24, 2007, 06:08:28 PM
I agree with the part that this would cause tremendous upheaval in the kids' lives. If dad is not inclined to file for custody, if I were him I would say to the judge, here is my proposed visitation schedule, but I have major concerns about the effects TWO moves will have on the kids. Not to mention the reduced time with dad.
Title: they might consolodate fees...
Post by: MixedBag on Sep 24, 2007, 06:46:24 PM
I don't think I ever paid a fee per child when both my girls flew together.

I think I paid per trip -- like one fee for the both of them.

And then there's the trip with Northwest that had us all confused.

OD was old enough, MD wasn't.  But since MD was flying with OD, my end didn't charge me a fee and off they went.

On the way back (in Chicago), Dad had to pay the fee.  He complained to the girls -- who  promptly answered "Dad they didn't charge mom a fee when we came up here so that's why she didn't say anything to you."

So....who was right?  Don't know....since I didn't pay, I didn't follow up.

Title: RE: Interstate Visitation Questions
Post by: MixedBag on Sep 24, 2007, 06:47:26 PM
is 5 weeks half the summer?

why does BM get both Thankgiving and Spring break....are you guys custodial?
Title: RE: Interstate Visitation Questions
Post by: mistoffolees on Sep 24, 2007, 07:38:35 PM
>I agree with the part that this would cause tremendous
>upheaval in the kids' lives. If dad is not inclined to file
>for custody, if I were him I would say to the judge, here is
>my proposed visitation schedule, but I have major concerns
>about the effects TWO moves will have on the kids. Not to
>mention the reduced time with dad.

There's nothing that can be done about that. Since the mother and father already live in different states and the mother is moving, the kids are going to move no matter what. It would be hard to argue that it's less stressful for them to move to the mother's new location than to the father's new location.
Title: RE: they might consolodate fees...
Post by: mistoffolees on Sep 24, 2007, 07:40:20 PM
>I don't think I ever paid a fee per child when both my girls
>flew together.
>
>I think I paid per trip -- like one fee for the both of them.

It may depend on the airline, but on American Airlines, at least, you are correct:

http://www.aa.com/aa/pubcontent/en_US/travelInformation/specialAssistance/childrenTraveling.jsp#Children%20Traveling%20Alone
Title: RE: Interstate Visitation Questions
Post by: Kitty C. on Sep 24, 2007, 08:32:02 PM
But would a judge think it would be okay for 2 children that young to move TWICE in so short a time with so much distance involved?  That's what I really question and why the BM thinks it has to be done this way.  

Personally, I would put the concerns up first and if the judge seems to think that it's okay for 2 young kids to move that far that often, THEN offer the proposed visitation schedule.
Title: RE: Interstate Visitation Questions
Post by: mistoffolees on Sep 24, 2007, 09:19:48 PM
>But would a judge think it would be okay for 2 children that
>young to move TWICE in so short a time with so much distance
>involved?  That's what I really question and why the BM thinks
>it has to be done this way.  
>
>Personally, I would put the concerns up first and if the judge
>seems to think that it's okay for 2 young kids to move that
>far that often, THEN offer the proposed visitation schedule.

I don't see how the judge can prevent it.

The kids have moved once and are now at some distance from their father. The mother wants to move again. The judge has several options:

1. Allow the kids to move with their mother. Kids would stay with their current CP but would have to move.
2. Change custody and have the kids live with their father (but they would STILL have to make a second move).
3. Allow mother to move but make the kids stay in current location. Obviously not going to happen.
4. Force mother to stay in state. Again, not going to happen.
5. Allow mother to move, let kids stay, force father to move to town with the kids. Again, not going to happen.

There is no plausible scenario where the kids don't have two moves in a relatively short time.

If the father can make a reasonable case that the mother will simply continue to move at short intervals, I guess it's possible to get #2, but I certainly wouldn't be on it. But even if he did get that, the kids are going to have a second move, so I wouldn't make 'two moves in a short time' the issue. Instead, I would try to make the case that the mother is unstable and has demonstrated a lack of stability for the kids. IMHO, it's unlikely that he'd win that argument, but it has a far better chance than 'two moves are bad for the kids' for the reasons given above.
Title: RE: Interstate Visitation Questions
Post by: gabes_mom on Sep 25, 2007, 08:51:10 AM
The BM is custodial

at this point the asking the children to spend MOST of their Thanksgiving and Spring breaks (since they are only 4 days long) traveling isn't fair to the kids. If they lived closer the 24 hrs one way from here we would definitely want that time but since they do not it's just not fair to them.
Title: RE: Interstate Visitation Questions
Post by: gabes_mom on Sep 25, 2007, 08:57:47 AM
" BTW, does she have a legitimate reason for that? Why not move directly to TX and save the kids the havoc of changing schools and making friends twice? "

I don't know what you'd consider legitamate.

The kids mom is a SAHM (don't get me started!) and I believe that she is taking the kids to her in laws house to stay with them for the 4 months that her husband is in training. She may not be allowed on the base (he got a job with the Border Patrol) until his training is complete.

We will be taking her to court either way because we want any modification made to be changed in the Visitation agreement that way it is court order not just an agreement
Title: The Verdict is In
Post by: gabes_mom on Sep 25, 2007, 09:14:33 AM
After speaking with my DH he requested that I email the BM and recommend to her this:

BM keeps kids every Thanksgiving and Easter/Spring Break since the vacations are 4-5 days long and most of the kids time would be spent traveling. Even if we were rich (which we are NOT) this wouldn't be fair to the kids.

Christmas Break Odd # years the BM will have the kids from the first day of vacation to the last day of vacation. Even # years DH gets the kids for the full holiday as well. The reason we started off with her having the kids this year is that they will be in Wisconsin there very likely will be weather delays.  In the BM's eyes that will be reason enough to interfere with our visitation times so in order to prevent a hassle we are just making it easier on us and the kids.

Summer Vacation we have the kids for 5 wks just like normal. Yes 5 wks is indeed half of their summer vacation.

Transportation Costs:

The BM to pay 75% of the airfare and DH pay 25% of airfare OR BM travel 75% of the miles where DH travels 25%.

We knew that it would not be realistic to request that she pay 100% of transportation. We know (from experience) that Judges won't go for that, at least not down here.


I emailed BM yesterday afternoon and this morning she agreed that our requests were fair and asked if this were to take effect this year. Of course she was told yes. I am floored that it was that easy, hate to admit now we are waiting for the other shoe to drop if ya KWIM?

Our next step will be to file a motion for modification of visitation and transportation costs and make this court ordered instead of just an agreement. This way we'll be covering our rear end.

Also for those of you who are curious why we didn't try the other route by trying to get the kids custody changed to DH....He is an OTR (over the road) truck driver. It's not realistic for us to assume that the judge would allow such a change of residence when that would put them relying mainly on me to raise them and only seeing their father a few days a month anyway. I am a full time working mom. Their mother is a stay at home mom. It's not likely a judge would see that as a good change regardless of all the state hopping the BM is doing.

Thank you all very much for all the responses it has all be sound advice and I will let you know how the court proceedings go.
Title: RE: The Verdict is In
Post by: MixedBag on Sep 25, 2007, 10:34:13 AM
so....

Every other year, Dad gets the kids 5 weeks.

And every year, dad gets Christmas Vacation and 5 weeks.

Hmmm....

Title: DH's agreement
Post by: Ref on Sep 25, 2007, 11:27:35 AM
The cost of visitation is considered in the CS calculation (it deducts the % income amount of the visitation from his monthly pay).

His schedule went something like, every other school break and all summer but the first week and the last two weeks.

Ha also had it written that he may have SD any weekend in her location so long as he gives BM 2 weeks notice.

He didn't take long weekends as much as he could, but SD wasn't going to fly from FL to PA for such a short time.  We did go down to see her in her town fo rsome of those weekends.  The clause about him being able to spend the weekend at anypoint  helped make-up for the time he couldn't have for the 3 day weekends.

SD's school is also good in that they attach thanksgiving and the fall break. DH can see her for a longer fall break every year.

Best wishes
Ref
Title: Couldn't they....
Post by: MixedBag on Sep 25, 2007, 08:40:32 PM
Fly on a Wed evening to Dad's and then back on Sunday afternoon?

Same thing for Easter/Spring break.

And what happens when the school calendar CHANGES??

See that happened to me.

Thanksgiving was 4 days....spring break was short too.

BUT over time each of those holidays morphed into a week long (M-F) off school and then you can hook on the weekends before and after.

If dad gives them up now -- he'll have a different set of standards to meet to get them back.

Think FLYING -- not driving...
Title: I agree - Propose the transportation to be via plane
Post by: dsm on Sep 26, 2007, 11:17:08 AM
you have a great deal of opportunity for time throughout the school year then as well.  Think of the 3-day weekends, teacher conference weeks, etc.

Flying makes it completely possible for Thanksgiving, Spring Break, Memorial Day, Labor Day, etc to work into the equation.

Good luck!

==============================================================================

dsm - 36; DH - 40; SD - 18; LO - 11; BB - 4
------------------
It's time for me to do for me and mine.  The others can worry about themselves for awhile.
Title: May not work for some but it does for us.....
Post by: gabes_mom on Sep 26, 2007, 03:39:29 PM
That's correct.

Odd years he'll see the kids 5 wks

Even years he'll see the kids 5 wks plus the 2 wks Christmas Vacation.



May not seem like a lot of time to most of you but with the cards we were dealt we did the best we could.

Like I said DH is an OTR truck driver he does the best he can and unfortunately we have no money to take her to court only to fight a losing battle because yes a change of residential custody at this point would have indeed been a losing battle.

Once again thank you all for your comments.
Title: RE: DH's agreement
Post by: gabes_mom on Sep 26, 2007, 03:42:41 PM
We can't afford to see the Sk's any weekend in their location. We can barely afford our bills at the moment.

I am glad that your hubby got an agreement that works for ya'll it's nice when you can spend more time with the children.

Unfortunately my sk's schools are nowhere near as convenient as attaching fall and thanksgiving. In fact their school only offers a Thanksgiving break they have no fall break.

Title: RE: Interstate Visitation Questions
Post by: lilywhite on Sep 26, 2007, 06:01:36 PM
You seem to be laboring under some false impressions.

First, the mother of these children got the judge's agreement in North Carolina in 2003 that she could remove the children from the state of North Carolina.  She's done that.

She is no longer subject to the laws of North Carolina.  She's not a citizen of North Carolina, and the judge cannot by law make any decisions regarding her.  She is a citizen of somewhere, although I'm not sure where that is.

As far as the children go, they also have not lived in the state of North Carolina in three years.  They are also no longer subject to the laws of North Carolina because they don't live either.

These things are a matter of law.  If the mother is smart, she won't submit to North Carolina jurisdiction.  

North Carolina still has jurisdiction over child support because the payer still lives there.

Now, the point is, this issue has been decided.  The mother has removed the children from North Carolina with the court's okay.  You have no standing to sue her wherever it is that she is living now because you are not residents of that state.  You can't sue her in North Carolina because she is no longer a resident of that state and the courts there have no jurisdiction over her OR THE CHILDREN.  

This is the way my attorney explained it to me.  In fact, she told me that I could move to New Zealand if I wanted to and take the children with me as long as I complied with the visitation schedule.

You can't keep challenging a judge's decision about out of state moves.  Once the decision is made and 30 days has passed, it's over.  If your order says that she is not meet you halfway, then she has to do that.  If it says she has to meet you in Staunton, Virginia then she has to do that.

I think it would be best if you tried to work this out amicably with her, because the only option open to you is to file for custody in the last place the children have lived for six months.  Your chances there would seem to be nil.

Title: RE: Interstate Visitation Questions
Post by: gabes_mom on Sep 27, 2007, 09:04:43 AM
I understand NC law where as you apparently do not.

I have taken care of these matters, we have resolved whatever "conflict" we thought may arise out of this and have moved forward. Read everything that I posted before assuming you know what is going on.

NC still holds jurisdiction over the case it is stated in the court order and she has complied with that over these years. She acknowledges the fact that NC still holds jurisdiction it doesn't matter to me whether you or your lawyer acknowledge it.
Title: RE: Interstate Visitation Questions
Post by: mistoffolees on Sep 27, 2007, 09:50:32 AM
>I understand NC law where as you apparently do not.
>
>I have taken care of these matters, we have resolved whatever
>"conflict" we thought may arise out of this and have moved
>forward. Read everything that I posted before assuming you
>know what is going on.
>
>NC still holds jurisdiction over the case it is stated in the
>court order and she has complied with that over these years.
>She acknowledges the fact that NC still holds jurisdiction it
>doesn't matter to me whether you or your lawyer acknowledge
>it.


Lilywhite was correct.

It doesn't matter what NC thinks, nor does it matter what you and your ex think.

According to the national Uniform Code (UCIJTA or something like that), jurisdiction falls where the child has lived for the most recent 6 month period.

Granted, unless she tries to change it, the rules laid out by the NC court will continue to apply. But as soon as she challenges it, UCIJTA will take precedence - and the relevant court appears to be PA in this case. If she continues to abide by the NC rules and doesn't fight them, then you may get a break. But there's no guarantee of that.

More importantly, you're missing the gist of Lilywhite's message. Even if you accept the NC rules, she has followed them. The rules allow her to move out of state. So you don't have any grounds to challenge her action on that basis.
Title: Actually, if in the original decree if both parties agree that
Post by: gidgetgirl on Sep 27, 2007, 12:58:46 PM
the original court maintain jurisdiction, then that holds until BOTH parties agree to have it changed.

My divorce decree has that language and even though XH nd I not longer live in that jurisdiction, we have all court matters handle through that court system.
Title: RE: Interstate Visitation Questions
Post by: gabes_mom on Sep 27, 2007, 01:28:28 PM
I am not trying to challenge her actions based on anything.

If you look at my original post all I asked was what the standard interstate visitation schedule would look like

And who would be responsible for the financial burden of the added distance. That is all that I asked about.

The issue of jurisdiction is irrelevant the BM agrees that the jurisdiction continues to be NC. At this moment in time it is not a problem, if it ever becomes a problem then we will worry about it at that point.

For those of you still interested in debating who is or is not the state who holds jurisdiction then check out this website:

http://www.law.upenn.edu/bll/archives/ulc/uccjea/chldcus2.htm

Pay close attention to Section 202

IMO I highly doubt a judge would be so willing to change jurisdiction since the BM is bouncing around the US.
Title: RE: Actually, if in the original decree if both parties agree that
Post by: mistoffolees on Sep 27, 2007, 03:08:49 PM
I'm not an attorney, but I don't think that's correct. Basically, you're saying that you are able to override Federal Law.

You can easily agree to that. But if one person changes their mind, they are free to do what the legal system allows them to do - petition a different court for jurisdiction. I can't see any way in the world you can stop that.

You COULD, however, sue them for violating your contract, but I doubt if you'd win that one. Yes, she would clearly be in violation, but since she's simply exercising her legal rights to peitition the court for jurisdiction, it would be considered acceptable per public policy.

Basically, looks to me like an unenforceable clause. if you're both happy with it, that's great, but that doesn't mean it would hold up in court.

Just MHO.
Title: RE: Interstate Visitation Questions
Post by: mistoffolees on Sep 27, 2007, 03:15:34 PM
>I am not trying to challenge her actions based on anything.
>
>If you look at my original post all I asked was what the
>standard interstate visitation schedule would look like

I already commented on that. I am now commenting on more recent posts.

>
>And who would be responsible for the financial burden of the
>added distance. That is all that I asked about.

See above.

>
>The issue of jurisdiction is irrelevant the BM agrees that the
>jurisdiction continues to be NC. At this moment in time it is
>not a problem, if it ever becomes a problem then we will worry
>about it at that point.

And I'm simply explaining to you that BM's agreement is completely revocable. If she wants to have a fight, then she can simply petition the PA courts as they would have jurisdiction under Federal Law.

Whether that's likely or not is something I can't comment on since I don't know the people involved. But you need to factor it into your thinking process because it may affect your negotiating position. Simply saying that she CAN'T change jurisdiction is wrong - and may lead you down a path you don't want to go down.

>
>For those of you still interested in debating who is or is not
>the state who holds jurisdiction then check out this website:
>
>http://www.law.upenn.edu/bll/archives/ulc/uccjea/chldcus2.htm
>
>Pay close attention to Section 202

I did. Did you bother reading 202.a.1? It says that a state retains jurisdiction only so long as the child has a continuing relationship with that state. Infrequent visitation does not generally count.

So your own source confirms what I said. Once the child has been out of state for 6 months, that state no longer has jurisdiction.

>
>IMO I highly doubt a judge would be so willing to change
>jurisdiction since the BM is bouncing around the US.

Judges change jurisdiction all the time. And what you've described is not 'bouncing all around the US'. Families move all the time. It's a fact of life. Your agreement specifically says that she's allowed to move. As Lilywhite says, you don't have much grounds to complain here.
Title: RE: Interstate Visitation Questions
Post by: MixedBag on Sep 27, 2007, 08:56:03 PM
yes, but 202(a)(2) plays into this since dad still resides in the original state.

Then there's 207 too.

Yes, judges change jurisdiction all the time, and I'll admit, I just went through this in Aug/Sep.

I don't live in the home state anymore that gave us our divorce and custody of our son to the father.  

But in August, we went to court because our son wants to live with me, mom.

Dad brought up the fact that he wanted jurisdiction to stay in our original state.  

Based on 202(a)(2), I thought jurisdiction would stay in the original home state until both dad and son no longer lived there.  THEN jurisdiction would follow the child (son).

The judge disagreed with me....and since our son was "concerned" that jurisdiction should stay in the home state (convenient forum for dad), I told the judge that I would not request jurisdiction be moved.

In September, the same thing came up and I once again reassured the judge and EX#2 that I would not request for jurisdiction to be moved MAINLY because the original court knows the history.

I wish I could have quoted it by section -- which is why I'm printing the darn thing off tonight to keep it handy.

Even for EX#3's situation.  He lived in Ohio and filed.  EX moved away with the kids.  Jurisdiction stayed in OH and could not be moved until EX#3 left the state too.  Then she asked for it to be moved.  EX#3 could have asked for it to stay since there was "continuous open litigation" for 3 years....but we decided to let it move.  There wasn't 30 days that went by before EX#3 could file something else in court because his EX wasn't abiding by the order -- contempt for not sending the children.
Title: RE: Actually, if in the original decree if both parties agree that
Post by: MixedBag on Sep 27, 2007, 08:57:30 PM
207 (b) (5) comes into play.

Jurisdiction stays in her case because it's in the decree and they agreed to it.

Yes, IMHO...
Title: RE: Interstate Visitation Questions
Post by: mistoffolees on Sep 28, 2007, 05:20:54 AM
>yes, but 202(a)(2) plays into this since dad still resides in
>the original state.
>
>Then there's 207 too.
>
>Yes, judges change jurisdiction all the time, and I'll admit,
>I just went through this in Aug/Sep.
>
>I don't live in the home state anymore that gave us our
>divorce and custody of our son to the father.  
>
>But in August, we went to court because our son wants to live
>with me, mom.
>
>Dad brought up the fact that he wanted jurisdiction to stay in
>our original state.  
>
>Based on 202(a)(2), I thought jurisdiction would stay in the
>original home state until both dad and son no longer lived
>there.  THEN jurisdiction would follow the child (son).
>
>The judge disagreed with me...

Because you were wrong.

202(a)2 does not override 202(a)1. Notice the 'or' between (a)1 and (a)2. If eaither one of these is true, then the original state loses jurisdiction.

As soon as the child no longer has a residence in the state, 202(a)1 says that state no longer has jurisdiction.

The reading of this is clear. When the child moves and establishes residence in another state (typically defined as 6 continuous months), the original state loses jurisdiction. Whether NCP stays in the state is completely irrelevant. Your judge even told you that.

Jurisdiction goes where the kid lives for 6 consecutive months-with very few exceptions.
Title: RE: Actually, if in the original decree if both parties agree that
Post by: mistoffolees on Sep 28, 2007, 05:34:40 AM
>207 (b) (5) comes into play.

Once again, you're misreading it.

Only the state which would otherwise have jurisdiction can exercise 207. Let's say the divorce is in TN and a few years later, CP moves to WV with the child. After 6 months, WV now has jurisdiction because of 202.

WV could, if they wish, say that WV is really an inconvenient jurisdiction (if, for example, the CP moved out of state with the kid a month ago and has not established new residency, yet). That is entirely within WV's prerogative because they have jurisdiction under 202.

TN does NOT have any right to claim jurisdiction. 207 only applies to the state which has jurisdiction under 202. A non-jurisdictional state can not claim jurisdiction under this (or any) clause. IOW, 207 lets a state GIVE UP jurisdiction, but does not let a state TAKE jurisdiction.

>
>Jurisdiction stays in her case because it's in the decree and
>they agreed to it.

As I've already stated, you can't agree to violate Federal Law and expect it to stick. You can reach such an agreement and as long as neither party challenges it, it can work. But as soon as one party wants to change jurisdiction and files with the court to do so, that clause is going to be thrown out. Judges don't like people agreeing that they're not going to listen to what the judge or law says.

You COULD sue the OP for breach of contract if they sign that agreement and then later try to change jurisdiction, but IMHO, you'll lose. The clause will be considered invalid so breach would be irrelevant. It's just one of those clauses that lawyers put in because it makes people happy, but it doesn't mean anything.


Simply, you can't override Federal Law no matter how much you wish you could. Jurisdiction is where the child has lived for them most recent 6 month period - with very, very few exceptions.
Title: Sorry, but I'm not sure I would agree with this still
Post by: MixedBag on Sep 28, 2007, 05:35:52 AM
" If eaither one of these is true, then the
original state loses jurisdiction."

Put the shoe on the other foot.

If I were my EX, who now doesn't have primary residential custody, I would take the position that "Hey, I'm still here in this state and I haven't moved, therefore, it should stay here."

EX#3's attorney in OH told us this was correct.

So let's just let this one lie....
Title: RE: Sorry, but I'm not sure I would agree with this still
Post by: mistoffolees on Sep 28, 2007, 06:57:51 AM
>" If eaither one of these is true, then the
>original state loses jurisdiction."
>
>Put the shoe on the other foot.
>
>If I were my EX, who now doesn't have primary residential
>custody, I would take the position that "Hey, I'm still here
>in this state and I haven't moved, therefore, it should stay
>here."
>

You don't seem to get it. It doesn't matter what position you or your ex take. The law is clear.
Title: No I don't
Post by: MixedBag on Sep 28, 2007, 09:21:12 AM
so let's agree to disagree and let this one lie.
Title: Found a great (and interesting) practical article about this issue
Post by: gidgetgirl on Sep 28, 2007, 10:10:33 AM
For those who are interested in this topic:

http://www.abanet.org/legalservices/lamp/cle/childcustody-part1.pdf
Title: RE: No BS please just Interstate Visitation Questions
Post by: Davy on Oct 02, 2007, 12:19:27 PM

Mist ... you posted :

>Pay close attention to Section 202

I did. Did you bother reading 202.a.1? It says that a state retains jurisdiction only so long as the child has a continuing relationship with that state. Infrequent visitation does not generally count.

So your own source confirms what I said. Once the child has been out of state for 6 months, that state no longer has jurisdiction.

>
>IMO I highly doubt a judge would be so willing to change
>jurisdiction since the BM is bouncing around the US.

Judges change jurisdiction all the time. And what you've described is not 'bouncing all around the US'. Families move all the time. It's a fact of life. Your agreement specifically says that she's allowed to move. As Lilywhite says, you don't have much grounds to complain here.

<<< ending your post   <<<

You are totally mis-interpreting these statues and by doing so defeating the very essence for the existence and purpose of both the UCCJA (and EA) as well as the PKPA.  

For example,  section 202.a.1 references 'this state' in order to allow 'this state' to relinquish jurisdiction NOT formulate a reason to secure or override jurisdiction of another state ( aka judicial competition ).

As you know OP asked about the non-existent standards for interstate access to children.  A legitimate and interesting question but it was used to allow others to run off at the mouth with their own OPINIONS or the OPINIONS of some money-grabbing half-a$$ attorney that quite frankly don't know dittly squat.  Very damaging to children and this site.

"Bouncing all around the US" plays to the welfare of children and should be of great interest to a court with continuing jurisdiction.  "Forum shopping" is a jurisdictional issue - when someone files one or more custody proceedings in foreign states (ie Illinois) clearly absent jurisdiction normally to gain favorable rulings.  It gives rise to false accussations, PAS, substantial legal fees, etc, etc.  

In many cases, there is substantial abuse, neglect and exploitation of children.  The characterization of Parental abductions are likened to stranger abductions.  

One would hope that our society and particularly frequent posters on this site would have a zero tolerence for these pitiful situations.

IMHO, Gabesmom (and Dad) are doing what they can (knowing all the players) under the circumstances ... at very least they're seeking advise and support.  She should not have to defend her inquiry.

 
Title: RE: No BS please just Interstate Visitation Questions
Post by: mistoffolees on Oct 02, 2007, 01:37:51 PM
You're accepting one side of the story without question. For example, Mom is planning to move temporarily to her parent's house and then permanently to another state. This is hardly "bouncing all around the US" nor is it indicative of abuse.

Furthermore, there is a well accepted standard in this country that the state which has jurisdiction is the state where the child has lived for the most recent 6 month period. That is the norm everywhere. The attempts to pretend that this is wide open and not relevant do nothing to further the understanding of what is acceptable and unacceptable - particularly when the only way to defend the "we can ignore where the child lives" argument is a grossly distorted reading of the law - as I've already shown.
Title: Not to stir the pot, but............
Post by: Kitty C. on Oct 02, 2007, 07:56:37 PM
....if the state where the child resides the longest is the state who has jurisdiction, then why did CA still have our custody order YEARS after we had established residency in IA?  I can't put a finger on it and I have no idea if it's federal or state, but I know I have heard about certain laws that prohibits parents from 'state shopping' in order to get a 'better deal' with either custody and/or support.  Which is why I believed CA retained jurisdiction in our case long after DS no longer lived there.
Title: RE: Not to stir the pot, but............
Post by: Davy on Oct 02, 2007, 10:47:08 PM
Hi Kitty, please let me elaborate on your post.

From my past research.  A foundation Uniform Child Custody Jurisdiction Act (UCCJA) was created to bring some order to custody determinations and to reduce and eliminate judical competion among the states.  As each state enacted the UCCJA they made changes (to coordinate with their own custody laws) like dropping the "or's" "and's" and "but maybe's" as well as entire paragraphs, etc which of course defeated the uniformity (some state's were forced to revise for uniformity).   This lack of uniformity defeated the main purpose of the UCCJA and gave birth to the federal Parental Kidnapping Prevention Act (PKPA; 1981).  The verbage above (or something very close to it) use to be a preamble in the PKPA I guess to justify it's existence.  The PKPA is much shorter and sweeter; direct and to the point.

The UCCJA and PKPA contains language as such :  

a court of this State has jurisdiction to make an initial child-custody determination only if:

(1) this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

... and continuing conditions

---The 6 month rule attorneys talk about ($$$) and is heavily basterized on this site is only one of many issues governing jurisdiction but it is very difficult to LEGALLY defeat the continuing and exclusiive home state jurisdiction as long as a left-behind parent continues to reside in the home state.  Home state jurisdiction is normally reqlinqueshed if no parties continue to reside in the state or no party objects.  

Hopefully you can apply these statues to the particulars of your case.

BTW, Wendl's situation is in our heaaaaaaaarts and mind.


Title: Amen to that...
Post by: olanna on Oct 03, 2007, 12:01:58 AM
Same thing here...SC wouldn't release it and the child had lived most of his life with me CA.  The child had equal connections to relatives in both states, so that one didn't fit in..and most of the child's education, etc was in CA.
Title: RE: No BS please just Interstate Visitation Questions
Post by: Davy on Oct 03, 2007, 12:41:39 AM

Please Mist you are sadly mistaken.  You may be citing a mis-guided social policy while the well accepted standard in this country is as follows :

The UCCJA and PKPA contains language as such :

a court of this State has jurisdiction to make an initial child-custody determination only if:

(1) this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

... and continuing conditions

---The 6 month rule attorneys talk about ($$$) and is heavily basterized on this site is only one of many issues governing jurisdiction but it is very difficult to LEGALLY defeat the continuing and exclusiive home state jurisdiction as long as a left-behind parent continues to reside in the home state. Home state jurisdiction is normally reqlinqueshed if no parties continue to reside in the state or no party objects.


Oh and about forum shopping.   Forum shopping normally occurs in different judical venues within the same state.  As an example, a four year TX resident can file in one IL venue after one day presence then relocate to a 2nd judicial venue 200 miles away on day 5.

The children and the left-behind TX parent had absolutely zero connection to either venue and the IL file-happy TX parent had not had a significant connection to the 2nd venue for 15 years and never to the first venue.  

Mist I could continue just to point out how deplorable interstate proceedings become.  I'm politely asking you to stop expounding on issues you have no explosure or knowledge. Over a great many years many children have suffered greatly and many parents have exhausted themselves trying to overcome the damage caused by these mis-guided social policies.  
Title: Question:
Post by: MixedBag on Oct 03, 2007, 06:00:55 AM
Didn't dad still live in SC???

And what state granted the inital divorce??

Did you ever ask to have it moved to your state?

Did you ever modify the order?
Title: Question:
Post by: MixedBag on Oct 03, 2007, 06:01:38 AM
Didn't Dad still live in CA?

And what state granted the initial divorce?

Did you ever ask to have it moved to your state?

Did you ever modify the original order?
Title: RE: Question:
Post by: Kitty C. on Oct 03, 2007, 09:26:59 PM
That's a confusing question in our case...........

Support was temporarily ordered in IA, BEFORE a permanent custody order was established in CA.  CA retained jurisdiction because at the time the order was written, DS had lived the majority of his life there (3 in CA, 1 in IA).  When I tried to make the support order in IA permanent (a few years after the perm. custody order was made), IA said that CA had jurisdiction since they had the custody order and Dad still lived there.  So the support order in IA was dismissed!  Legally, DS's dad didn't have to pay a dime after that, but he continued paying the same amount, all the way up to his death in 2001.

He paid $250 a month for 8 years............if I had had the money, and the vindictiveness, I could have pushed for a support order in CA and forced him to pay 2 to 3 times that amount.  But we were getting along so well for DS's sake that I didn't want to rock the boat and it would have only been greedy of me to try that anyway.
Title: Thank you Kitty!
Post by: MixedBag on Oct 04, 2007, 06:08:41 AM
See -- my personal humble interpretation and understanding is that IF one parent still lives in the original state, jurisdiction doesn't follow the child until BOTH parents move away.

Mist and I respectfully disagree -- and actually so does the judge who has jurisdiction over my case.  So I said in court twice that I would not file to have jurisdiction moved.  No problem.


You're another example of how I think it works.


Title: ... for DS's sake ...
Post by: Davy on Oct 04, 2007, 07:19:34 PM

... for DS's sake ... is the most important words in your post.  Very honorable and valuable functioning.

 It is also important that you mentioned the father continued to pay CS
without force.  I submit that DS's Dad did so because he loved DS .. AND because he TRUSTED you to use the money for DS.   Personally, I have great respect for both of DS's parents.

As to the jurisdictional issues, it appears that your case may be one concerning convenient forum while case historys mostly dwell on disenfanchising the other parent.  IMHO, it is one of the MOST HUMANLY DEMEANING thing a person(s) and society can do to children and a parent.  (Note; in my case the other parent was not the engineer but sadly somehow allowed/tolerated it ).  
Title: RE: Question:
Post by: olanna on Oct 05, 2007, 12:24:43 AM
*Didn't dad still live in SC???*

Yes. But all the children moved with me to CA.

*And what state granted the inital divorce??*

SC

*Did you ever ask to have it moved to your state?*

Yes but ex refused to allow that to do be done.

*Did you ever modify the order?*

Many times.  
Title: Thanks!
Post by: MixedBag on Oct 05, 2007, 05:56:57 AM
Another example then of how I feel the law works.
Title: RE: Thanks Davy
Post by: gabes_mom on Oct 17, 2007, 12:28:46 PM
Davy
>
>IMHO, Gabesmom (and Dad) are doing what they can (knowing all
>the players) under the circumstances ... at very least they're
>seeking advise and support.  She should not have to defend her
>inquiry.
>
>  
I just wanted to thank you for what you had to say.