S.P.A.R.C.

Separated Parenting Access & Resource Center
crazy gamesriddles and jokesfunny picturesdeath psychic!mad triviafunny & odd!pregnancy testshape testwin custodyrecipes

Author Topic: Amicable situation- Need to change Primary Physical Custodian  (Read 10776 times)

4mykids

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
Hi I'm new here. Hope you can lead me in the right direction!


tigger

  • Private Reserve
  • SuperHero
  • ***
  • Posts: 7924
  • Karma: 591
    • View Profile
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

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
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

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
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

  • Private Reserve
  • SuperHero
  • ***
  • Posts: 5068
  • Karma: 172
    • View Profile
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

  • Sr. Member
  • ******
  • Posts: 1013
  • Karma: -545
    • View Profile
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

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
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

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
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

  • Jr. Member
  • **
  • Posts: 121
  • Karma: -1
    • View Profile
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

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
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! 

ocean

  • Private Reserve
  • SuperHero
  • ***
  • Posts: 5068
  • Karma: 172
    • View Profile
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #10 on: Jun 13, 2011, 03:31:12 PM »
How did it go today?
No passports! Get the order to return children at the end of the visit. Start collecting records of kids being with you if she files for custody by you. If she files anywhere else, you should ask for a dismissal as the children have not lived with her.

If you get kids back, no more visits until you have new court orders. Call the kids school and say you do not allow transfer papers to new school. You can ask for that in your motion. Children will remain in same school until trial.

4mykids

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #11 on: Jun 14, 2011, 05:22:52 AM »
How did it go today?
No passports! Get the order to return children at the end of the visit. Start collecting records of kids being with you if she files for custody by you. If she files anywhere else, you should ask for a dismissal as the children have not lived with her.

If you get kids back, no more visits until you have new court orders. Call the kids school and say you do not allow transfer papers to new school. You can ask for that in your motion. Children will remain in same school until trial.


Once again, thank you for the invaluable info. Tried to get a hold of several attorneys yesterday with secretaries letting me know to expect
a call the next day (today). I wonder if these are things I can just file on my own.

ocean

  • Private Reserve
  • SuperHero
  • ***
  • Posts: 5068
  • Karma: 172
    • View Profile
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #12 on: Jun 14, 2011, 05:35:30 AM »
Yes, you can file on your own. See if a lawyer calls you back today. Tell them you need to file an ex parte (emergency) hearing. If you do not get anyone, you can file yourself and then hire a lawyer to deal with the hearing.

You want the children returned immediately, that the children can not be taken from current school district. (ask and see how you will enforce it- will the sheriff help you? You need strong wording to get children back). Ask one of the lawyers for advice on what to go down an file and then you will hire them for the hearings or issues surrounding their return.

Good luck today :) If you get to the family court intake unit early, you should see a judge today or get a ruling by tomorrow.

4mykids

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #13 on: Jun 15, 2011, 06:17:58 PM »
Yes, you can file on your own. See if a lawyer calls you back today. Tell them you need to file an ex parte (emergency) hearing. If you do not get anyone, you can file yourself and then hire a lawyer to deal with the hearing.

You want the children returned immediately, that the children can not be taken from current school district. (ask and see how you will enforce it- will the sheriff help you? You need strong wording to get children back). Ask one of the lawyers for advice on what to go down an file and then you will hire them for the hearings or issues surrounding their return.

Good luck today :) If you get to the family court intake unit early, you should see a judge today or get a ruling by tomorrow.


Well here's what's happened and honestly so far and it doesn't look good. After calling several law firms one
attorney manage to return my call yesterday and informed me that since I willingly gave the children to my
ex-wife (even to go on vacation) that to file an ex parte now would mostly like yield fruitless results. He
went on to explain that it's because I obviously didn't believe they were in any apparent danger.

Then he went on to tell me I could file a parenting agreement with a judge and that judge could order our
children to stay with me until the trial. He said it depends on which judge I get. He also mentioned (as you guys did)
that the fact that they were with me for the past year an half (nearly two school years) would hold some water.

He then went on to break down his expenses (3000.00 dollar retainer, he bills at 200.00 an hour and rarely
has he done a case where he has NOT gone through the 3000.00 retainer and require more). He then gave an
easier number to reach him at.

I realized I'd be forking over some dough for the service and it's worth it, but it's just going to be quite
a sum in the end with me not even feeling all that confident about getting them back.

I'm also awaiting comments or legal advice from an ex-husband (whom I've met and got along with) of one
of my friends. She say's he's one of the best family law attorneys in the state and has been in my
position with an ex (not her). We'll see what happens as I called him yesterday and supposedly she
has communicated with him on my behalf as well. Also if he's that busy and that good this could cost me
a small fortune.

I'm researching and prepping for tomorrow to at least file what I can on my own.
I'm trying to get all my ducks in a row before I go to downtown to initiate paper work. It's been extremely
trying as I still work a great portion of the day (I normally begin work between 4:30 and 6:30am), but I'm
off at 1pm tomorrow and plan to head directly to the courthouse. Although I love my job and am blessed to
work alongside some incredible individuals (both coworkers and clients alike) I am constantly thinking about my children.
In my heart I believe that other than taking me out of their lives she loves them and would do no harm them.
Though I'm in terrible pain (and I realize it's not all about me) I have some peace of mind knowing she loves them.

I am sad, but feel that I am strong. I'm trying to look at the big picture (trying to see what is right for our kids).
Maybe I'm missing something. My father left me a message (I keep missing him because of work) saying the kids may
eventually see what they have/had in me and return. Regardless I must stay strong for them and for me. I'm not
sure if I really believe this or if I'm trying to convince myself of this. I want to believe it.  It sounds good though...huh?  :)
Either way I needed to write it out. Okay, I'm tearing up a bit so I'm out.

Once again, I sincerely thank all of you for your help and advice.
Prayers and Luck to all of you (especially to those in my situation or one like it). STAY STRONG!
Paul

ocean

  • Private Reserve
  • SuperHero
  • ***
  • Posts: 5068
  • Karma: 172
    • View Profile
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #14 on: Jun 15, 2011, 06:28:36 PM »
Do not hire the first one...they are not into fighting the fight.

If you file yourself, put in something like, "father has had custody of children here in XX since XX. Children went to visit mom on XX. On XX date, mother has said she will not return children to their home/school. Mother is asking for their passports. Father fears mother will take children out of the country and not return them on as she stated in an email dated XX. Father requests the courts to order the children back to home state (father's custody) and that the children not be allowed to be discharged from current school district (name school here)"

You need to file the ex parte (emergency hearing). NOT a change of custody/visitation.  Some places you will see a judge that day. Some places you get a decision the next day (especially if you are going so late). Here the courts are closed from 1-2 so call and ask before you rush there at 1.

Good luck! Maybe you can talk to the other lawyer in AM and just say what you are doing and get some advice and hire someone later...

4mykids

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #15 on: Jun 15, 2011, 07:05:14 PM »
Thanks again for the quick response Ocean! I'm getting everything in order right now so
I'm prepared to give it my best shot tomorrow. Thanks for the help with the wording and
such.

I'll wait for my buddies friend or try him again in the am. I need to make the first step
regardless tomorrow. Thanks for the hope!

ocean

  • Private Reserve
  • SuperHero
  • ***
  • Posts: 5068
  • Karma: 172
    • View Profile
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #16 on: Jun 17, 2011, 06:02:39 PM »
any update?

4mykids

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #17 on: Jun 17, 2011, 09:41:12 PM »
any update?


Yes. Thanks for asking,

I guess every state is different because here in MT they had me go from the courthouse over to the public library's
self help floor to get info, advice and paperwork to fill out the Ex-parte and Proposed Order forms. And then the folks
at the library gave me info along with website info and informed me that I could go to the mtgov site to fill out the info, send it
or save it and return to the library and they would print it then help me get it to the judge.

This is more complicated then I thought yet well worth the effort. I'm working on it now and hoping to have it done by
father's day (how ironic) and be prepared to turn it in on mon.

I guess we'll see.

Thanks again for your help and encouragement.

4mykids

  • New Arrival
  • *
  • Posts: 11
  • Karma: 2
    • View Profile
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #18 on: Jul 21, 2011, 07:15:02 PM »
Okay, I told you guys I'd update so here it is. My ex still has the kids (it's been 5 weeks now), has filed for child support and wants to come down to collect the rest of the children's things (including birth certificates and passports). I guess I'll have to pony up the 2000 to 25000 it takes retain a lawyer.  I did attempt to file the Ex-parte and proposed order forms, but between the good folks at the library (I do believe they tried), my own lack of experience and the courts giving me the old "run around" (I went back and fourth several times) my attempts were fruitless.

I'll update again later.

Once again, thanks for all your help.

MixedBag

  • Global Moderator
  • SuperHero
  • *****
  • Posts: 3049
  • Karma: 155
  • That's Me...MixedBag
    • View Profile
    • http://www.doilyboutique.com
Re: Amicable situation- Need to change Primary Physical Custodian
« Reply #19 on: Jul 22, 2011, 06:28:07 AM »
She can get her own copy of the birth certificates -- and keep the passports until ordered to turn them over.
 
UGH!
 
 

 

Copyright © SPARC - A Parenting Advocacy Group
Use of this website does not constitute a client/attorney relationship and this site does not provide legal advice.
If you need legal assistance for divorce, child custody, or child support issues, seek advice from a divorce lawyer.