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Author Topic: Jurisdiction UPDATE  (Read 4830 times)

NYParent

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Jurisdiction UPDATE
« on: Dec 04, 2009, 11:07:21 AM »
Well just got out of court here in NY.  FYI BM did not show up, but she did have an attorney there to represent her.  Believe it or not, jurisdiction has NOT been decided.

Her attorney came in and stated that it needed to be "quick" because she had to leave.  I swear the hearing lasted 10 minutes.  BTW, she had already adjourned a prior hearing because she was "unavailable."  We got her Motion last week (she filed late b/c she was expecting us to ask for an adjournment again).  She states that NY does not have jurisdiction because the child's home state is now TX and that's where all the evidence is because she's lived there a couple of years now.  She's asking the court to decline jurisdiction because of "inconvenient forum" which according to the UCCJEA is allowed.

My attorney told me that it could go either way.  The judge already told me that eventually the case will be moved.  My attorney is asking for the case to stay in NY because we are simply seeking more detailed parenting agreement and not a change in custody so there's no reason to go to trial over this and therefore there's no need for evidence.

In regards to X-mas.....the judge said that there's no reason why I shouldn't have DD for two weeks and travel with her.  When the judge asked her attorney why BM had not confirmed she said that she didn't know because she wasn't getting involved in that.  Judge said that she would give an order the next time we went back affirming I can have the time.  Her attorney said that she couldn't give any orders because NY had no jurisdiction and my attorney jumped in and said "yes, NY continues to have jurisdiction" the judge looked at her and said "that's right."

My attorney told me to purchase my tickets today and have it all ready the next time we go which will be in two weeks.

Has anyone ever dealt with jurisdiction changing because of inconvenient forum?  How did it go?


Davy

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Re: Jurisdiction UPDATE
« Reply #1 on: Dec 04, 2009, 01:10:47 PM »
NYP, Under principles of the UCCJA ... and I suspect the UCCJEA is the same... the FIRST OVERRIDING and POWERFUL requirement that had to be satisfied was the  "6 month / and parent continues to reside residency criteria".  "Significant connection", "Inconvenient forum" are subsets fronted with "and"s and "or"'s. 
 
In my case, arguments began with rather or not the UCCJA even applied and went from there to turning every letter, word, sentence of the statue upside down and backwards.  My attorney appeared under some "special limited appearance" clause that prevented him from entering into any divorce/custody related matter.  Only appearing for jurisdictional issues.
 
I prevailed hands downs on all issued but "significant connections" became worrisome since we were both born and raised and married in that state, both grandparents lived in the state, we still owned real estate in the state and the family had resided in the state for 11 years before relocating.  Funny, there was no mention of the seven buildings she and her fiance had burned to the ground.
 
In the last hearing, the judge (in one sentence) acknowledged he had absolutely no jurisdiction over the parties or the children but refused to dismiss the case until I filed for divorce in Tx.
(What !  He has no jurisdiction over a CP in Tx and you can't order someone to file for divorce).
She re-filed in another IL venue the next day and I filed the following day in TX (w/attorney) claiming I didn't believe in divorce. 
 
I thought your otherside was arguing "significant connections".  I also thought NY had confirmed jurisdiction so I was surprise to see NY is going to relinquish.  What happened ?
 

mdegol

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Re: Jurisdiction UPDATE
« Reply #2 on: Dec 04, 2009, 03:07:24 PM »
This is one of the arguments that my lawyer made.  I was a little afraid that might be brought up, and it might be hard to overcome if NY willing decides that it will be too hard to deal with evidence that resides mostly in Texas.  I won on other conditions, but I guess it comes down to the cost of home studies ect..and bringing in the locals for hearings.  New York may not want to deal with that if the child's doctors, daycare providers, counslers,ect are all in Texas and will have difficulty testifying.  I know you were thinking of bringing the daycare worker to testify, this might be a reason not to do so?  Don't know, but it might bring the inconvience to the courts attention?  A simple set of clarifications isn't as big of a deal.  I think your lawyer has the right idea.  And you want to keep it in NY as long as you can.

MixedBag

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Re: Jurisdiction UPDATE
« Reply #3 on: Dec 10, 2009, 05:49:25 AM »
I have experienced this twice.

EX#3 lived in Ohio and filed for a divorce.  Wife fled with the kids to NV and never ever appeared in an OH courtroom for the next few years.

When jurisidiction finally came up as a subject, we were told by his attorney that we could concede and file in NV where we had a better chance at actually getting punishment invoked because she was THERE.  Or we could ask the court not to move jurisdiction because there were continuous on-going matters in OH.  Our drawback in this case was that Dad had by then also moved away from OH down to AL.....but there wasn't 30 days in a period of over 3 years where there wasn't something pending before the OH court.  Once mom fled to NV, she didn't allow dad to see the kids for over 3 years, so the divorce took 2 1/2 years, and then he immediately filed for contempt because she never even complied with the temporary order giving dad time in the 2 1/2 years.


Second experience is my own....

I used to live in WV.....and divorced there, and Uncle Sam moved me to AL (retired active duty military here).  We've been to court on a few occasions, and in the summer of 2007, son wanted to move here.  So I filed in WV.  One of the things Dad wanted in an order was that I agreed to having jurisdiction STAY in WV.  I said "mute point" because dad still lived in same location all those years.  Dad and Judge B actually agreed with dad and said there is nothing Judge B could do to stop me from moving jurisdiction to AL.  I said in court that I disagreed and I would not request to move jurisdiction because of all the case history that's in WV.  FF two summers later, and son wants to move back to Dad's.  I disagreed......now was it in a motion or a letter from dad, but Dad said something like after doing research, jurisdiction should be WV.  (I thought DUH!).  And that's where we hammered out the latest round.

Yes, I had to travel to WV for hearings -- some of the smaller ones, I could appear by phone.  As for evidence -- that's a tough one too -- I could not bring a person/teacher and stuff to WV to testify.  I had to rely on other stuff to support my position.

Let me add this......and I think Soc discussed this in the past.

NY does not have "personal jurisdiction" over Mom because she is not there.  And that does become a problem.  You have to get a decision in NY, and then ask TX to enforce it.  So....let's say the decision is that if Mom doesn't send the children she is facing 30 days in jail (Yep, EX#3 got that once in an order).    In EX#3's case, OH couldn't and wouldn't extradite Mom from NV and put her in jail.  She had a benchwarrant that sat out there for geez, 7 or 8 years, before it expired and OH did nothing proactively to enforce it even though we could tell them exactly where she was.  That was one of the swaying factors why EX#3 allowed jurisdiction to be moved to NV.....so if this happened again, maybe NV would throw her in jail.....or we were hoping MORE than she would send the kids for parenting time as ordered instead of hiding them away

Davy

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Re: Jurisdiction UPDATE
« Reply #4 on: Dec 10, 2009, 07:14:52 AM »
Sorry MB ... NY does have "personal jurisdiction" over the Tx Mom and is the only court that has jurisdiction over all parties.   That is one principle (ie Full Faith and Credit") of uniform acts.
"Continuous Jurisdiction" is another. 

I think TX has declined jurisdiction or should have declined.

The problems with this case (modifying an existing NY custody order) is that the mother refuses to comply with NY while seeking favorable rulings in TX to previous agreed or ordered rulings.  The NY court may be wavering instead of protecting the child.

Let me ask this.  What in the world happens to this child (or any child) when NYParent legitimently refuses to comply with TX jurisdiction ????  Or complies with TX jurisdiction  ????

Either way the child(ren) is at substantial RISK of growing up without both parents.

It is much better to jail and reprimand the wayward parent now than to call the absent father (by force) in the future to please come and get his lovely children (now juvenile delinquents) out of a county jail.

That is the reason these statues exist.


MixedBag

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Re: Jurisdiction UPDATE
« Reply #5 on: Dec 10, 2009, 01:29:06 PM »
Personal jurisdiction....
 
Davy....
 
over in Soc's section, I did a search on Personal Jurisdiction because I remember him talking about it.
 
found this:
 
http://www.deltabravo.net/forum/index.php/topic,7936.msg44358.html#msg44358
 
down in Paragraph C....it says "Physical presence of, or personal jurisdiction over, a party" -- that defines the term personal jurisdiction.
 
even at wikipedia:
 
http://en.wikipedia.org/wiki/Personal_jurisdiction
 
Personal jurisdiction refers to a court's power over a particular defendant (in personam jurisdiction) or an item of property (in rem jurisdiction). If a court does not have personal jurisdiction over a defendant or property, then the court cannot bind the defendant to an obligation or adjudicate any rights over the property. Personal jurisdiction is to be distinguished from subject-matter jurisdiction, which is the power of a court to render a judgment concerning a certain subject matter, or territorial jurisdiction, which is the power of a court to render a judgment concerning events that occurred within a territory. Unlike subject-matter jurisdiction, personal jurisdiction may be waived, even unintentionally, by a defendant. Personal jurisdiction, territorial jurisdiction, subject-matter jurisdiction, and proper notice to the defendant are the most fundamental constitutional prerequisites for a valid judgment.
 
 
http://www.wordiq.com/definition/Personal_jurisdiction
 
The NY court can kick, holler, make orders.....but they will probably NOT extradite mom to face their decisions.
 
Its exactly what we faced when the OH court issued a bench warrant for EX#3's EX -- and they never ever followed through.  It just sat there......until years, and yes, years later when it expired.  EX never ever stepped foot in OH -- had no reason to go there, and other states refused to assist in enforcing the warrant for EX's arrest and extradite her.
 
It isn't until you get to criminal and more serious offenses that the court reaches out and touches you across state lines.

MixedBag

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Re: Jurisdiction UPDATE
« Reply #6 on: Dec 10, 2009, 01:40:38 PM »
You know -- NYParent....go over to Socrateaser's page and search on "personal jurisdiction" -- yes, put that in quotes, and then read the few results.

See...MOM hired an attorney to say that she has no ties and minimal contact with NY so move juridiction to TX.

She was served....so she knows what's going on......and given Soc's advice, so I can see why your attorney says it can go "either way."

Her attorney has strict guidance to just appear for jurisdiction stuff.....just as yours had in Texas.


I'm hoping the decision comes down on your side because YOU never left the original state where the divorce was filed.

Let us know.
 
And its all a delay tactic -- because she doesn't want to send the kids to see you.....stall stall stall....
 
Doesn't matter WHICH court hears this stuff down the road, she's denying access to the kids which is the bottom line, huh?

Davy

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Re: Jurisdiction UPDATE
« Reply #7 on: Dec 10, 2009, 05:10:46 PM »
Amazing.

Well if the mother and her attorney say so it must be true.  Same as the other attorney saying it can go either way.  NOT IF THE COURTS AND ATTORNEYS FOLLOW THE STATUES IN BOTH STATES AND FEDERAL STATUES.  You must agree with my home state TX attorney when he told me these statues don't apply to her ... only you (the father).   How very frustrating.  Gee, I'm still married.

NY is the orgiinal and continuing jurisdiction and has jurisdiction over all parties.  Tx has absolutely no jurisdiction to modify or jurisdiction to make any custody determination in this matter.  Anything else is willy-nilly.

NY does not need to extadite to enforce it's orders because the NY order is enforceable in TX or any state.

So what you are really saying is that the mother does NOT need to comply with court orders in any state and courts do not need to enforce their own orders or follow the rule of law.   Amazing.

I guess the next thing is that the mother and TX has jurisdiction over an out of state parent.

ALL TO THE DETRIMENT OF CHILDREN.

 

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