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Author Topic: Dismissal based on Lack of Jurisdiction  (Read 12401 times)

NYParent

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Re: Dismissal based on Lack of Jurisdiction
« Reply #10 on: Aug 17, 2009, 06:52:10 PM »
Thanks for the information provided thus far.

Unfortunately I do not have a lawyer and I am doing all this Pro Se.  All the information I've gotten from everyone here has been so valuable to me through this process.

Today I got a letter from TX court saying that the custody order has been registered with the state.  While reading through it I don't have a problem with this except for one sentence which reads as follows..."A registered family order may be modified in the same manner as a family order issued by a Texas court."  Does this mean that by registering the custody order from NY in TX would be changing the jurisdiction of the case?

According to the letter I have 20 days to request a hearing to contest the validity or enforcement of the order.  I am so confused here.  Any help would be appreciated.

Thanks!


Davy

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Re: Dismissal based on Lack of Jurisdiction
« Reply #11 on: Aug 17, 2009, 10:06:00 PM »
NYParent ... I want you to fully understand that I am not an attorney and I am only espousing the experience I had in arguments for ORIGINAL jurisdiction as a TX  resident in IL.  I had to respond because I refused to file in TX while IL demanded jurisdiction when petitioner was clearly a TX resident.   

In your case, NY has already legally anf rightfully taken jurisdiction and made decisions in full compliance of all state (UCCJA) and federal statues (PKPA).  You seem to have a full understanding that ALL MATTERS will continue under the original NY jurisdiction as long as you remain a resident of NY AND YOU DON'T DO ANYTHING THAT COULD BE PERCEIVED OR ARGUED THAT YOU RELINQUISHED NY JURISDICTION like FILING IN TX FOR A HEARING especially to contest the validity or enforcement of the order which of course you would do in NY.  Your NY judge seems to understand that he has modification jurisdiction.

As far as you know, the TX atty may have already filed in TX ....which should have raised red flags acting on a NY order against a NY resident .... and the filing was rejected.  Don't be surprised to find that TX rejected the case ... they have a hard time managing TX cases.

Since you have appropriately filed for modification in NY your ex and her atty don't want to fight your NY petition in NY and, of course, are trying to get you to submit to TX jurisdiction especially since you are functioning ProSe' (they especially dislike that ... I did the same on some matters).

IF I were you, I would find a couple of experienced UCCJA/PKPA NY attorneys and get some legal opinions and if their is a quick remedy by writing a letter then you may want to consider.  Just familiarize yourself with the UCCJA an d PKPA so you don't get hood winked and get thrown into jurisdictional court arguments.  I definitely would not enter a foreign (out of state) proceeding prose'.   Please keep us posted.  Many others may want to better understand your entire experience.

MixedBag

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Re: Dismissal based on Lack of Jurisdiction
« Reply #12 on: Aug 18, 2009, 07:12:08 AM »
Davy -- are you saying that he shouldn't even file a motion to dismiss in TX stating that NY has jurisdiction?
 
So what happens if the TX court simply proceeds -- maybe even gives a default answer in favor of the mother because dad didn't answer?
 
 

Im-a-dad2

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Re: Dismissal based on Lack of Jurisdiction
« Reply #13 on: Aug 18, 2009, 08:49:23 AM »
Like Davy said - DO NOT FILE ANYTHING IN (or answer anything from) TEXAS!!!

If you do, you will be submitting to their jurisdiction, which would obviously suck for you.

I JUST went through this myself. My ex and I got a custody order in state "A". My ex and child moved to state "B", and I stayed in state "A", the home state.

I recently filed new motions in state "A", and my ex tried to tell me I had to go to her state to file, since she and my child live there now. That is a big NO!!

If there is an existing order in one state, then that state forever has jurisdiction, unless both parents move from that home state, or BOTH parents agree to a change in jurisdiction.

MixedBag

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Re: Dismissal based on Lack of Jurisdiction
« Reply #14 on: Aug 18, 2009, 11:11:48 AM »
I hear what you're saying -- but that doesn't answer my question.
 
Maybe the answer is to ask the NY Court to call the TX court....yes, phone calls have and do happen between judges.
 
 


Davy

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Re: Dismissal based on Lack of Jurisdiction
« Reply #15 on: Aug 18, 2009, 12:41:04 PM »
MB, according to his post, NYPARENT is being requested by letter ... not even a legal notice ... from a TX attorney to request (within 20 days) a hearing to contest the validity or enforcement of the NY court order in TX.  It does not make a lick of common sense for the NY parent contest anything in TX and by doing so could be construed as submitting to TX jurisdiction.  Believe me, the TX attorney is looking for the slightest excuse to throw this matter into jurisdiction litigation in TX.  TX has zero jurisdiction over the NYParent while NY has jurisdiction over all parties.
 
The bottom line, TX CANNOT modify the NY court order and the mother has to return/respond to the NY court COURT ORDER.  I can almost guarantee the TX attorney would not be sending these letters if NYPARENT was represnted by legal counsel.  The TX attorney, an officer of the court, is borderline jeorpardizing their right to practice law and proceeding in a TX legal action may do just it. 
 
The UCCJA is part of a national Uniformed Standards act and one of the stated purposes was to prevent subsequent costly re-litigation.  These legal statues remove status quo and discretion commonly present in family court.
 
.

MixedBag

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Re: Dismissal based on Lack of Jurisdiction
« Reply #16 on: Aug 18, 2009, 03:36:45 PM »
Davy, I totally agree with you regarding jurisdiction stuff.
 
I guess "served with a citation" needs to be explained because as I understood the first post, court action was filed in TX.
 
You know -- us common folks trying to decipher all this stuff in an effort to help more common folks.
 
Thanks!

Davy

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Re: Dismissal based on Lack of Jurisdiction
« Reply #17 on: Aug 18, 2009, 04:31:42 PM »
MB ... I'm just a common ordinary person as well but I think NYParent realizes that TX has absolutely no jurisdiction over him or his children and the case has been settled in NY. 
 
When I was involved in jurisdictional litigation my attorney advised against being in the foreign state (ie like to see the kids) because they were fearful that even a traffic violation would give rise to further extraneous litigation.  Ant they all advised that I would be "walking on eggshells" just going there to VISIT the kids and highly recomended I just FORGET the kids.
 
After 3.5 months (ex was only there for approx 10 days and had left the venue) of litigation the judge issued his findings : "he agreed that IL was without any jurisdiction over any of the parties but would not release the case until the father filed for divorce in TX" .  She had already filed in another IL jurisdiction (her hometown) the day before. IT REALLY GOT MESSY AFTER THAT.  She was named CP in IL and I was NCP.  She was NCP in TX and I was first ever CP in TX with court-ordered visitation.

NYParent

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Re: Dismissal based on Lack of Jurisdiction
« Reply #18 on: Aug 18, 2009, 04:38:48 PM »

For clarification purposes I should state that the letter I received came from the clerk's office at the court by registered mail.  I was also served with a citation from the court for the modification (which I have no intentions of going to TX for).  Luckily my court date here in NY is before and the clerk in NY told me that it was very likely that the judge here in NY would communicate with he judge in TX as a form of professional courtesy to let them know that NY is handling the case.

What others have said about not responding to TX makes sense.  I guess from a legal standpoint they can make whatever orders and modifications that they want, at the end of the day they don't have jurisdiction and therefore they will not be valid.

My only concern now is the registration of the foreign (out of state) order.  Simply because I supposedly have a deadline of 20 days.  I have contacted several attorneys here in NY, so I am waiting to see what I hear from them regarding this specific matter.  I'll see what they say.

I meet with a former family law judge (a friend of a friend) who told me that for the most part courts don't like to give up jurisdiction.  That made me feel better.  Plus this person said it was guaranteed that the judge here in NY could see through my ex's intentions (especially because she tried to get Sole Custody to begin with and the judge told her no way).  So I will make sure to have a copy of the citation the ex served me with me on the day I go back to court.



Davy

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Re: Dismissal based on Lack of Jurisdiction
« Reply #19 on: Aug 18, 2009, 04:58:48 PM »
Good moves.
 
The NY judge "professionsl courtesy" will be the most effective of all options.
 
Just for CYA.  I would enter a "Notice to the Court" to your clerk to legally make it part of the case ....and attach a copy of the TX citation along with a statement that you refuse to submit to TX jurisdiction.  Also take a copy to court as you planned.
 
The regristration of foreign orders is a legal requirement I think under the statues having to do with national Uniformed Acts.   Please share what your attorneys say because it comes up quite often on Sparc.  And ...thanks in advance. 

 

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