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Father needs custody/child support help?

Started by Justin, Jan 29, 2009, 09:26:30 PM

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Justin

Hello my name is Justin; My x-girlfriend and I were in a relationship for about 4yrs. Half way through our relationship we had a baby, and was a perfect baby boy. About a month after the baby was born she wanted to visit her parents in Fl. wich I had no problem with. She said she was going to visit for 3 wks wich again I was ok with that. Little did I know she was coming home 3 months later with a son I barely know, again he was perfect. I was upset about it all but eventually got over it, and got closer with my son. A month later she wanted to go back to Fl. again to visit her parents with my son i was just getting close to. She was going to stay for 2wks. I was upset but eventually got over it. Again she came home later than she said. 1 month later. To make a long story short she's left me to go visit her parents with my brand new baby 4 different times and came back once when she said she was coming back. This last time she left for supposably 2 wks she never came back. Now I am hit with a $525 child support bill. And there trying to keep him until he's 5 yrs old before I can take him back to my home town. I need some information on what I should do about lawyers, child custody, child support and paying my bills. Most important my son.

gemini3

You have a right to see your child.  You also have an obligation so support your child - so there's not much you can do on that end of it.

Please give some more details-

How old are you and how old is your girlfriend? 

Were you two living together when she wasn't in Florida? 

Did she have a job where you live?

Who is trying to keep him in FL until he's 5?  Has she filed for custody/visitation as well as child support?

How long has she been in FL this time, and has she allowed you to visit your child during this time?

Justin

Thanks for replying, I am 30yrs old and she is 26yrs old. She did live with me the whole time we were together. She did have a job the last time she came back but wasn't enough to help with the bills, all she helped with was food, and we got a vehicle and apartment together based on two incomes. So I was stuck paying all the bills. She did try to keep him until he was 5yrs old but the judge never ordered that. We're still waiting on the dna test. She's been in Fl. for about 2 1/2 months now. And as far as visiting them I haven't had the money two do anything at this point.

gemini3

What your girlfriend has done is kidnap your child - which is wrong you need to fight it.  You're behind the eightball because proceedings have already started and you haven't objected.  If an order was signed you will now have to show change of circumstance.

What exactly did she file and what happened?  Is there another hearing scheduled?  Was a custody order signed at the previous hearing?  If so, who was given custody and what was the visitation?

You should be requesting visitation, and that she pay for the transportation since her move was voluntary.

Please give as much information as possible.  It will help us help you.

Marsha

If no custody or visitation was ordered, its not kidnapping.  They were not married so father does not automatically have rights until he or someone files for them.  He is just now taking the DNA test to determine his parentage.

dad, if mom keeps the child in FL long enough to declare FL the childs homestate, then the child can stay and live there.  It is totally unclear in your post what legal proceedings have taken  place, when, etc., and what is the next legal step.

I assume you've taken the DNA test?  You need to file papers immediately for custody and visitation, and state that you oppose moms' moving the child to FL.  State your desire and the childs need to have his father in his life on a regular basis, and that you want the court to order mom to return the child to your state.  If you can't afford an attorney, go down to your local courthouse, get the right forms, fill them out.  Type up, double spaced, a page stating the above, and serve the papers.  The court house cannot give advice but they will grumbling tell you what you have to do next (how many copies you have to make, how to serve the papers).

If you haven't been served yet for custody and visitation (unclear) YOU serve HER, ASAP.  Worry about an attorney later.

Also, many court houses have a family law facilitator you can consult one time for free.  She/he will help you not only write up your personal declaration, but tell you how or set you up with the right forms.

Justin

You know I thought about the whole kidnap thing but I just don't think anything would happen on my behalf. I am waiting to take a DNA test now so everything is on hold right this moment, but I do have a lawyer that we picked out in Fl. and says we definately have a case. I think we're just going to file a counter suit case on her and try to get full custody but it prob. won't work. Now the whole thing on her coming back to my baby's home town where I live, can they make her do that? What if she's been in fl. for 6 months but they haven't been consecutive? Is that her and my sons new residance? I really don't understand the whole residance issue.

daryy

How about  kidnap thing ? What's going on?

Davy

When more than one state becomes involved in the interest of a child gives rise to something known as "home state" jurisdiction or the state jurisdiction most likely to decide the best interest for a child.  Generally speaking, a child must be present in a state for a period of six months in order for that state to be regarded as the "home state" for the purpose of making determinations (ie custody, visitation, support, etc) regarding a child.

There are also other considerations.  One of those is if a child has a "significant connection" to a state.  Some examples of signification connection would be if a left-behind parent (about to be disenfranchised parent) still resides in the abscounded from state.

A child's temporary absence from or presence in a state is not used to calculate the six month consideration.  Lack of a Marriage of the parents is also not a consideration.

Unfortunately, home state jurisdictions usually do not order the return of a child (they should) and leaves it up to the abscounded to state to refuse /reject jurisdiction and order the child returned.  The process usually requires a custody filing (ASAP) in the home state and hiring an attorney in the foreign state (FL. in your case) to file a limited appearance only for the purpose of arguing jurisdiction.  (cheaper than custody issues)

The statues governing each state is known as the Uniform Child Custody Jurisdiction Act (UCCJA) and the federal statue is the Parental Kidnapping Prevention Act (PKPA).  Both documented in the articles section of this site.

Not to confuse any issue but the National Organization known as Missing and EXPLOITED Children is concerned with similiar matters. Please give full credibility to the word 'EXPLOITED'.  Your child is at high risk of growing up fatherless and children need both parents.



   

Marsha

OK,  this is my meager understanding of the law.  Mind you,  I wanted to move myself and my baby, and was very afraid to.  Unequivacle legal advice I got was that the father could file papers to order the baby returned...and though it would be a crap shoot, I would face a better than likely prospect of having to return to CA with baby, find a new place to rent, job, etc.

For clarification on a few points, if you were not married, and NO CUSTODY AND VISITATION ORDERS EXIST, then you first you just got to get the DNA test done ASAP.  If you are determined the father, then you file immediately for the return of the baby to the childs state of jurisdiction.

Second, the state the child was born in is the state where court will happen.  UNLESS, mom keeps the baby in FLA for however many months...its diff for each state.  You can google that kind of info pretty easily.  For the present, lets pretend its six months.  Mom needs to have mail sent to her, have established herself a home, etc., to declare that as babies new state.  If she stays there the six months, uncontested, then that is the childs home state where if/when you go to court for custody and visitation, you have to go to that state, their local county, each time for court appearances.  Thats why you need to get the DNA cleared and submit the orders as quickly as you possibly can.

My understanding, and I may be wrong...let your attorney tell you...is this is not kidnapping.  At this point you have no legal standing with the child as you have not been declared the father.  If you had been married to the mother when the child was born, you would automatically be put on the birth certificate as the father and not having to prove your standing as a father.  But that is  not the case here.  Here, you have to prove you are the father.  Therefore, its not kidnapping.

While waiting for the DNA test, start taking notes and building your case, not focusing so much on the mom, but focus on your desire to be a father, that you want to be a consistent and regular part of the childs entire life, from birth throughout, help with school, regular visitation time if not 50/50.

Personally, I don't get why attorneys always request way over and above what is realistic.  I'm sure judges are used to it, but I can't help but wonder if one would come across as more sincere and real, in the presentation to the judge.  After all, you would not want a baby to all of a sudden have full custody with you after having had all this time with mom.  That would be very harmful to the baby.  I would not state you desire that.  I would state what I suggested above, and that your goal is to have a graduated schedule with the child that grows to 50/50 shared time.

MomofTwo

Jurisdiction, particularly over a very young child, will sometimes come down to who filed first and where.  It does sound like filings have been initiated in FL and that is where ultimately jurisdiction may end up.  Have you consulted with local counsel?  If the FL attorney you consulted with spoke of filing for custody, then FL is where jurisdiction maybe.

So you are aware, it is definitely not absconding when paternity has not been established and until that time it is, Mom is considered (FL law) to be the sole custodian.  She was at will to take the child and leave you and there was  nothing illegal about that. 

That being said, FL recently passed legislation that is geared more towards shared custody.  You will not likely be awarded shared (50/50)  physical custody because you don't reside in the same state/area, but FL is geared toward shared legal custody and you would be given that. You would of course have visitation.  Because FL is now geared toward shared custody, it is not likely you would be given primary custody.  The courts do not often change status quo when everything is ok and it is a young child with Mom already and unless she is a threat to the child, the courts are not likely to intervene and change that. 

The new law does require a parenting plan to be submitted to the courts.  Think about what you want and write it down.  Being as it is a young child and you are not in the area, you need to consider things like support (FL has guidelines, but it generally comes out to about 20% net income), visitation, transportation, transportation costs, holidays, visitation schedule when child starts daycare/school, ... it would actually serve you well to reside closer so you can see the child more.







Marsha

Dear poster,

Sorry if I gave wrong info. about what state has jurisdiction.

Davy

Marsha and MomofTwo .... you are both wrong and very wrong....   

MomofTwo

I apologize if you think I provided incorrect information, but I stand by what I offered...
I never said FL would have jurisdiction, I said FL may have jurisdiction.   There are too many variables here poster has not provided...He initially said was hit with a  child support bill, but this was unclear if it was an actual bill or a child support order, and if it is an order, from where?  Poster also said mother tried to limit visitation until the age of 5 but the judge did not order that...what judge? What state?   According to UCCJA, in establishing home state - in the case of children under six months of age,... the State in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.


Davy

In reality, with the facts presented, it is clear and convincing that the mother has sought or is seeking to prevent a child from having a relationship with the other parent.  All to the detriment of the child.  Unilateral moves of this nature are highly frowned upon in judicial circles, as it should be. All governing statues are substantially in favor of protecting potentially "at risk"  child (ren) and the left behind parent. 

Please read the UCCJA and PKPA in it's entirety and refrain from such untruthful statements such as "filing first", father should move to Floriduh and get visitation, etc,etc,.

Please explain why the mother should not have approached the local home state jurisdiction for support, visitation, etc. including the permission to relocate the child to la-la land.

At this point, this father should consider :

Retain counsel in the foreign state with experience in UCCJA/PKPA with limited appearance for jurisdictional arguments only. Do not recognize the foreign state for any other matter.  It is better if counsel is not part of that jurisdiction good-ole-boy system.  Should require only a couple of brief hearings.  Request all costs named by the statue. Counsel needs to be licensed for Federal court  and file PKPA if necessary and ASAP.  These arguments are of a rule of law nature ... not "mommy biased best interest" that drag on forever ... you win !!

Retain counsel in home state as necessary for custody, visitation, support, paternity, etc.
The court should not be favorable to the mother but they probably will be while respecting the father for standing for your child the best he could.   




   


MomofTwo

Regarding..."At this point, this father should consider...." 

She did not need to file in his home state as until paternity has been established and until he is recognized as the father of the child,  before a court, he is not the father, and effectively without rights. He doesn't get  the benefit of the presumption of paternity that comes from marriage.   

Justin...has she in fact filed in FL for paternity, support, and visistation? or your home state? Have you filed anything in your home state?  The FL attorney you consulted with...did he advise you jurisdiction would be FL or your home state based on all of the information you presented to him. 

It sounds like the child has been gone from  your home state essentially since birth...can you confirm or elaborate?




.

Davy

Momoftwo... given your philosophy and mindset this mother or any mother could run to any far-away state and tag the richest guy with a job she had run across as the father and be financially awarded child support.

How can you say or imply that paternity can be established in a foreign court without DNA but must be established in a home state before the father has any rights  ?????
In essence, you're saying the father only has rights when the mother says he does as well as naming the jurisdiction he has rights.  Geesh !  You really must be joking.   

Just because so-called "visitation" is ordered does not mean the mother will comply.  Why should she.  She thinks she is above man's laws and God's laws or she would have filed in the home state in the beginning.

What do you think a FL attorney will advise if one does not know what to ask  ?  How much  money will Justin be asked to send to Floriduh. 

Justin has been named as the father or he would'nt be asking about custody/child support and apparently there is an illegal court order since the state was /is lacking jurisdiction to do so. 

It is clear that the child from birth had a home state AND STILL DOES and has not been defeated by the mother filing in a foreign court.  An attornry may also be throwing in Incovenient forum, the behavior of the mother, etc.

I really don't understand your contention.  The advice I provided for the father CONSIDERATION was the advice I followed to win on jurisdiction in two states ...one state 3 separate jurisdictions and Federal court.  Designated managing conservatory in both states.
I prevailed because I focused on the my children.

It's called the UCCJA and the Parental Kidnapping PREVENTION Act (PKPA) for a reason.

gemini3

Just wanted to point out that, if the state is requiring him to pay child support, the state has recognized him as the father of the child - unless he is able to prove otherwise.  The mother would have to have listed him as the father with the child support people in order for them to send him a bill.  So, in my (non-attorney) opinion, the question of his paternity has been answered by mothers actions.  If Justin is not sure on the paternity then he can have it confirmed by the DNA test - but I think that the mother has proven that she believes he is the father.

Therefore, by her action, she has removed the child from it's state of residence, it's family home, and witheld the child from contact with the person who she has acknowledged to state agencies is the father of her child.

The Parental Kidnapping Prevention Act states: "home State' means the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months, and in the case of a child less than six months old, the State in which the child lived from birth with any of such persons. Periods of temporary absence of any of such persons are counted as part of the six-month or other period;
such State is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child's home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant
".  Therefore Justin's state is the home state.

Justin - you need to file in your home state.  Filing in FL gives her the advantage and concedes to her move away.  It will also be a LOT more expensive for you.