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Author Topic: Amicable situation- Need to change Primary Physical Custodian  (Read 10775 times)

4mykids

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Hi I'm new here. Hope you can lead me in the right direction!


tigger

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Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #1 on: Apr 11, 2011, 10:38:20 PM »
You need to give more details and ask a specific question in order for us to know which direction to point you.
The wonderful thing about tiggers is I'm the only one!

4mykids

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Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #2 on: Apr 11, 2011, 10:46:05 PM »
You need to give more details and ask a specific question in order for us to know which direction to point you.
I did give more info, but for some reason it didn't show up. Tried to modify, but didn't work. Thanks.

4mykids

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Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #3 on: Apr 11, 2011, 10:49:34 PM »
Ok, we here we go again!

My ex and I were divorced in AZ in 1999. She filed for sole custody of our then two and three year old children and I did not dispute it. My ex-wife and children moved to MT in 2000. Shortly after I followed them. While residing in MT I paid chlid support and had our children in my care half the time.

My ex-wife moved with our children to another state to go back to school in Aug, 2009. In Nov, 2009 she asked me to come out during the Christmas holidays of the same year to bring our children home (MT) to live with me. I did so and they have been living with me for the nearly a year and a half. My ex informed the State of Momtana that I alone would be caring for our children asked that the child support orders be cancelled. My case was promptly closed. We don't receive assistance from her either.

My ex-wife and I have agreed to modify our current current custody arrangement making me the primary physical custodian, but are unsure of the process. I'm not certain if I need to file papers in court or if I can do so by mail or online. I'm also not sure if i need to do this in AZ where the divorce and custody actions took place or if I can accomplish this here in MT. Our two children (now twelve & thirteen) and my ex are quite agreeable to this custody arrangement, but we're (ex and I) unsure how to go about it. We hope to achieve this with limited legal representation as our relationship is very amicable. Funds are extremely limited as I am a single father raising two children on a moderate income.

I've also been told that if they been living with me that that fact alone would make me the primary physical custodian. Is this true?


Your guidance and advice would be deeply appreciated. Thanks in Advance!

ocean

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Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #4 on: Apr 12, 2011, 04:43:43 AM »
Several options:
Is there a reason you want to go through court? If things are fine all these years...why pay and deal with court? Even if your ex changed her ways and tried to take custody from you, it would be very hard for her to do due to kids ages, wants and that you have them enrolled in school and living with you. You can ask her to sign a letter stating that you have primary custody.

You can do it yourself through family court. Since the kids have been with you for a while, you can try and file by you for temporary custody (or emergency temporary custody if she is now being a threat) and then just leave it like that. Forms are sometimes online through family court by you. If she does not fight it, your family court should take over.

You can file "modifications of custody" papers by her family court. In those papers, write both parents agree and father has had custody since xxx. Attach a notarized letter from mother stating she agrees. They may want you to show up to make sure this is what you want and the judge will sign off on it. You can call a lawyer and ask how much it is for them to file for you if you both sign off on it. Then you can split the cost if you are afraid to do it yourself. Remember you can always start it yourself and if it gets bad, you can always hire a lawyer for court or to continue for you. Since the case is there this is easiest way especially if you both agree.


Davy

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Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #5 on: Apr 12, 2011, 06:33:25 PM »
MT is the ONLY proper jurisdiction to modify custody based on residence of the children since 2000 except for the brief TEMPORARY absence from the state in 2009.  In addition, AZ no longer has modification jurisdiction since no party to the original custody order continues to reside in that state.  The BM's state can not modify since the children resided there for a brief period while temporarily absent from their home state (MT).  More importantly, the children have resided with their Montana parent by agreement of both parents and the children for nearly 2 years.  It would be extremely difficult if not impossible for any one to defeat MT jurisdiction.
 
I suggest you can simply kiss (keep it simple stupid) this by paying filing fees and emphasizing an Uncontested Modification of Custody.  You are not expected to function as if you are trained in the legal system.  Stress that both parents and children are amicable ( is that really a word ??? ) and agreeable to to children's current living and custody arrangement.  You might add a short statement that a Child Support award is not bing sought (if that is the case).
 
Attach a dated copy of the original custody order to any modification filing. 
 
In many states you would be referred to as the DeFacto Primary Custodial parent.
 
Thanks for posting whereas both parents are functioning and putting the kids FIRST.   

4mykids

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Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #6 on: Apr 12, 2011, 11:17:18 PM »
Ocean & Davy, you two are incredible.

Thank you so much for responding to my situation with such swiftness.
I work in a service oriented profession and I rarely see this kind of assistance when it's paid for!
God Bless you both as the information and opinions you've given are invaluble.

It appears my situation may not be as bad as I first believed. Ocean, you asked if things have been fine all these years
why go to the trouble. Well I guess I really don't trust her completely. I had no say in the move to Montana nor Pennsylvania
and I'm not certain what her attentions are nor how far she would go to come move our children to California (She has aspirations
of working Hollywood). Our kids are happy here, tired of moving around, achieving good grades, excelling at sports, have many
friends here and say they want to stay. But I think to myself "what would stop her from snatching them out of school or showing
up with authorities and paperwork showing her to be the primary and taking the kids (at this point against they're will) to California
or anywhere else.

You both have given me food thought and I attend to initiate paperwork here in MT. Though they attend school here and have
lived with me for such a long time I struggle with the ideal of not having some type of legal paperwork establishing custody for
my children. I guess I'd feel like I let them down (if things went sour) if I didn't at least try to establish some kind of control on
paper (especially if they still chose to stay).

At this point I truly believe that she loves them as much as I do and would do anything for them. I also believe that she would have
my children's best interests in mind which may include them remaining here in MT if she thought it best or they insisted. But ... I'm
just not sure.

I believe in the "kiss" principle (learned that in the air force) and I'll go the simple modification route (suggested by you both) first.
Hopefully that'll be enough and it'll all end up happily ever-after. :) I'll let you guys know what I did and it turns out.

Thanks Again!

4mykids

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Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #7 on: Jun 12, 2011, 07:22:53 PM »
Okay, here we go.

A couple of weeks ago she moved back to MT (appr. 4 hours from where I live). She came to pick up our kid's under
the pretense "giving me a break" and taking them on vacation. She said she's keeping them now! She's convinced both
children (though I believe it's the "Honeymoon Effect") that they should stay there with her now. She took them a
week and half ago (It'll be two weeks this coming Friday). It was to be a 2 week vacation. Then a few days ago she
said they were going on a trip (possibly into Canada) sometime soon and requested that I send both of our children's
passports and birth certificates to her mother's address (who supposedly she's staying with). Then I knew. I asked her
what her plans were and she said she'll make arrangements to get the rest of their things. I believe she is systematically
trying to use me and the system to get her way. I believe the kid's will suffer to a certain extent as well. I'm also sure that
though I never asked for child support from her that she will seek it from me very soon. At this time she is jobless.
The kids (12 and 13) have been with me for well over 6 months (2 school years). I got them passports last summer as
the 3 of us took a trip to Orlando, FL. We stayed at Universal Studios for 5 days and then took off on a 4 day cruise
to the Bahamas (the main reason I purchased the passports). I had planned to take them somewhere special again so
I also fear sending the passports and birth certificates to her. After this who knows what she's capable of.

I plan to seek legal representation tomorrow, but would like to know what you guys think my chances are of getting
them back (especially with her convincing them to stay. I don't know if I should wait out the full 2 weeks (as planned for
her "vacation"), if I should call the police, simply hire an attorney now or give up because I don't have a chance. I know
that since they lived with me for the last 6 months I must have some rights. All I want is a chance to have them with me
again and then if I must take this through litigation then do so. Any suggestions?

Thank You In Advance,

bloom6372

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Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #8 on: Jun 12, 2011, 11:37:18 PM »
File for an Ex-Parte Order (Emergency Order) for her to return the children to you on the grounds of the children living with you for the last 6 months. Be sure to include that she wants the children to live with her now and that she is requesting their passports. DO NOT send the passports. You will have to show proof of the children living with you (school records, medical records, etc with your address on them).

4mykids

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Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #9 on: Jun 13, 2011, 07:52:19 AM »
File for an Ex-Parte Order (Emergency Order) for her to return the children to you on the grounds of the children living with you for the last 6 months. Be sure to include that she wants the children to live with her now and that she is requesting their passports. DO NOT send the passports. You will have to show proof of the children living with you (school records, medical records, etc with your address on them).


Great! I'll be doing that today. I can't just give up. She knows I have our kids best interest in mind and that I wouldn't
want to put through any struggles, but I have to try to get them back. They have to know I tried. I have to know I
tried.

Thanks for your quick response! 

 

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