update.. and a few???

[mishelle2]

Soc,


Ok, so Im not sure if you remember me, but I had the case in FL but CA actually had juris.. we were going through dismissal to have case heard in CA,, well case was dismissed in FL. I sent bm a letter (certified) stating my intentions of having our daughter over summer I told her to respond by the 22nd (gave her almost 2 weeks)

I received an email from her yesterday stating she would send daughter, however I must sign a formal agreement with all these restrictions about visitation, conversations etc.

I planned on filing a Temp order and OSC on monday since I wasnt sure if bm would respond,   as of right now, there is no custody determination made.. at all.. I have all documents filled out and ready. I emailed bm asking her if I dont sign formal document will she send daughter, Im sure she'll say NO.. so I need your advice

1 Do I file temp order for summer contact?
2 Do I attach her email to declaration showing she is attempting to coerce me to sign agreement?
3. Do I sign agreement, then file once child is here Since signature was coerced?
4. What would you do??

oh.. and .. thank you very much..

[socrateaser]

>1 Do I file temp order for summer contact?

Did you already file a petition for custody? If so, then yes, I would file a notice of motion for an order granting temporary custody and I would attach and reference the email as evidence of her intent to frustrate your access to the child.

However, if you can get her to send you the agreement with a cover letter explaining what she wants, then you would have something more solid. But, I wouldn't wait real long to try to get this, because she may just use it for a stall tactic.

Tell her to send you the agreement immediately and that if you receive it by Wed next week you'll sign it. That way she will feel some urgency to act and maybe she take the bait.

If she doesn't then just use the email.

>2 Do I attach her email to declaration showing she is
>attempting to coerce me to sign agreement?

See above

>3. Do I sign agreement, then file once child is here Since
>signature was coerced?

See above.

>4. What would you do??

See above.

[mishelle2]

Soc

I have not filed the petition for custody yet, I do have all the paperwork done I am just waiting for her response to my email and I have a very detailed email saying exactly what she wants..  
I emailed her again and asked her that if I will not sign formal agreement will she send child. I'm sure she'll say no, then I will print it and attach it to my declaration for my temp order along with the other email stating what she wants.
In the email I sent, I also addressed the fact that I havent spoken with my daughter since April 2nd and I have left 8-9 messages with no response,  I went on to say please have her call me on my toll free number so she wont incur charges. Last time she said she isnt my secretary.. so hopefully history will repeat itself

1. Will the email from her work, instead of her sending a letter?

2. if no,should I tell her to write out an agreement and fax it to me?

3. So monday mornin,, file OSC for custody/visitation and temp order with email attached?

thanks... :)

[socrateaser]

>1. Will the email from her work, instead of her sending a
>letter?

You may have difficulty proving that the email was from her and that it is unaltered. You would be better with a letter.

>
>2. if no,should I tell her to write out an agreement and fax
>it to me?

You need something with her SIGNATURE ON IT. That's why I suggested a cover letter. Otherwise you need to be able to authenticate the email as actually being from her, and that is more difficult to do.

>3. So monday mornin,, file OSC for custody/visitation and temp
>order with email attached?

Well, actually you need to file a petition to establish parentage, unless you have already signed a CA voluntary acknowledgement of paternity, and a petition for custody and then an OSC for temporary custody with some sort of parenting plan attached, with an declaration of supporting facts and the email or other memorandum,  and the FL court's dismissal order finidng that jurisdiction would be more appropriate in CA. And, probably a few other things I'm not thinking about.

But, I thought you had an attorney. Evidently not.

[mishelle2]

ok,, so after getting the bill from FL atty, hiring one here, wasnt an option that day, however I did file all paperwork, and asked for order shortening time and service, which was granted.  I have spoken to the atty I have used in the past and he has agreed to be subed in if I need him.

The commissioner gave me 3 days to get my paperwork from CA to FL and have her served.. which I did... by a process server.

 The commissioner gave the mother until Monday  to have response filed and served on me. My local  court does not allow fax filing.
Mother still thinks that FL has jurisdiction even though FL case was dismissed, therefore she may just ignore petition.

questions:

1. IF mother does not file response according to commissioners date, what happens?

2. Can mother refuse to submitt to CA jurisdiction?

3. If mother ignores petition then what, I win by default????

thanks

[socrateaser]

>questions:
>
>1. IF mother does not file response according to commissioners
>date, what happens?

You appear at the hearing and request that the court grant your petition as requested. You could even orally move at the hearing for sole custody with no visitation, with an order that should the mother wish to move to modify custody again at a later time, she may do so without demonstrating a substantial change in circumstances.

That is, you throw a bone to give the court a reason to grant your order, because courts are extremely loathe act against the child's interests until they know what those interests are, and the court would be ordering in your favor only to vindicate the court's authority -- which could happen, but I doubt it.

>2. Can mother refuse to submitt to CA jurisdiction?

Interesting question. Did the mother or child ever live in CA? Were you subjected to the original child support order prior to the mother and child leaving CA? If so, then I'd say CA can probably exercise jurisdiction, because it's fair and just that the mother and child, having left CA might still be subject to CA jurisdiction on a custody issue, where the other parent continues to reside in CA.

But, if not, then, I could see the possibility that an appellate court might not authorize jurisdiction. Absent a timely appeal, however, the full faith and credit clause of the Constitution kicks in and the mother will be stuck with whatever the CA court orders.

>
>3. If mother ignores petition then what, I win by default????

Not really. You must still appear at a hearing and make your case. You just won't have an opponent present.

[mishelle2]

child support order was 3 years prior to mothers move, also support order states CA has jurisdiction over parental relationship issues. But no custody determination was ever entered.
Since no custody determination was ever made I was allowed to file in the county I live in since neither party live in county where support was ordered.  I have never left the state, and mother left the state without notifying me.  Fl has released jurisdiction to CA.

1.What if response comes in after the alloted time?

[socrateaser]

>child support order was 3 years prior to mothers move, also
>support order states CA has jurisdiction over parental
>relationship issues. But no custody determination was ever
>entered.
>Since no custody determination was ever made I was allowed to
>file in the county I live in since neither party live in
>county where support was ordered.  I have never left the
>state, and mother left the state without notifying me.  Fl has
>released jurisdiction to CA.
>
>1.What if response comes in after the alloted time?

Probably nothing, unless the unreasonable delay causes you unfair prejudice or extra costs in preparing to meet the response. If either occurs, then you should be able to get your costs covered, assuming you have any.

If the response is after you obtain an order in your favor, then the judge won't likely just reopen the case -- but, it's certainlly possible, depending upon the response and whether it effectively operates as a motion to set aside the default order, based on grounds of fraud, mistake, duress, inadvertence, or unfair surprise.

[mishelle2]

Soc,


Well, I havent been served a response yet, and I spoke with the clerks office, no attorney has been subed in. Mother was to have papers filed and served by today, I would assume that when bm read papers and judge put in that she is to have response in and served by today that she would not know that as long as its in before court shes fine.. so..I know.. today isnt over, and I could be served today....


questions:

1. How long before court does the opposing party have to give notice of subing in an atty?

[socrateaser]

>Soc,
>
>
>Well, I havent been served a response yet, and I spoke with
>the clerks office, no attorney has been subed in. Mother was
>to have papers filed and served by today, I would assume that
>when bm read papers and judge put in that she is to have
>response in and served by today that she would not know that
>as long as its in before court shes fine.. so..I know.. today
>isnt over, and I could be served today....
>
>
>questions:
>
>1. How long before court does the opposing party have to give
>notice of subing in an atty?

It can be as late as the hearing at the moment your case is called to the bench. In other words, at any time, and even after the hearing is over.

[mishelle2]

OK.. I spoke with the atty here, and I am subing him in just to speak at the hearing, he looked at all the paperwork, and said this is easy (which he said before) he also said, our local court will not allow the response later than Friday as monday is court, as the judge has a huge case load. But I am sure the bm thinks that if she doesnt respond shes not submitting to CA jurisdiction.

[socrateaser]

>OK.. I spoke with the atty here, and I am subing him in just
>to speak at the hearing, he looked at all the paperwork, and
>said this is easy (which he said before) he also said, our
>local court will not allow the response later than Friday as
>monday is court, as the judge has a huge case load. But I am
>sure the bm thinks that if she doesnt respond shes not
>submitting to CA jurisdiction.

Could be that her FL attorney is telling her that they can quash an order from CA in FL. But, I don't see how that can happen, after the FL judge refused jurisdiction, unless the FL attorney thinks he/she can challenge the entire UCCJEA as unconstitutional. My read is that CA already has jurisdiction over the case and the child, because the child was taken from the jurisdiction without your consent.

It's a tough call, and it could get real interesting.

[mishelle2]

well, come to find out, she owes her atty in FL $$$$ so he didnt even show up to the last hearing, he called my atty night before and said, I agree with you, my client doesnt but well agree to voluntary dismissal, then didnt show up for hearing.. soo.. for her to challenge it she'll have to come up with $$$$ ..My atty in Fl used to be state prosecutor, so he knows his stuff, he listed all state statutes in motion to dismiss on uccjea issues, FL and CA so its pretty easy for judges to read and see whats going on.  Heck I even submitted a copy with my OSC here to make the judges job here easy...
I guess we'll see at the hearing Monday,  I will have order prepared in advance and then if shes a no show submit it for signature, serve bm a copy with flight itinerary and if child is not on plane, turn it over to our local unit for parental kidnapping, my atty says they will track her down.


sooo I guess well see
I was thinking of sending bm an email, stating I didnt receive her responsive declaration,(keeping it nice and written out of concern for my visitation for my daughter) she usually sends back nasty emails..

good idea or no?
advice?

[socrateaser]

>sooo I guess well see
>I was thinking of sending bm an email, stating I didnt receive
>her responsive declaration,(keeping it nice and written out of
>concern for my visitation for my daughter) she usually sends
>back nasty emails..
>
>good idea or no?

Waste of time. If you have proof of service of your OSC then you've done all you need to do.


>advice?

Two choices:

1. Ask the judge for an order granting you permanent sole custody and parenting time, and then go to FL and have the local sheriff help you retrieve the child. The judge may not do this, since the Family Code requires that no permanent order for sole custody issue until the court has assured that the other party has had adequate representation, even if it means that the petitioner (that's YOU) must pay for it!

2. Ask the judge to instruct the local district attorney to take steps under Family Code 3131 to recover the child from FL. This is the easy route, but the court may eventually tax you and the other parent, assuming she has any money, to reimburse the County for whatever it costs for the DA recover the child.

I'd ask for #1 first, and #2 in the alternative.

[mishelle2]

OK, so got a response today in the mail, she subed in an attorney, who as my atty said today (when I subed him in and cut him a check) is just wet behind the ears, (shes been lic for 4 years practicing under a criminal law atty, has been doing family law for a few months) (hes been family law only atty for 32 years)

anyways, all her response says is:

 Other: I consent to the following order:  florida should have jurisdiction as it is childs domicile since 1999
UCCJEA prioritizes home state jurisdiction in section 201

the state which is home state of child currently, or was the homestate within six months of the commencement of the proceeding if the child is absent from the state but a parent or acting parent continues to live in state.

1.Doesnt that last paragraph, prove my case for me?? since I have never left the state of CA??

2. What do you think of this?

[socrateaser]

>1.Doesnt that last paragraph, prove my case for me?? since I
>have never left the state of CA??

The attorney is referencing an irrelevant part of the UCCEJA. The FL court has already relinquished jurisdiction to CA, and this attorney is attempting to get CA to do the same in favor of FL. Legally, there's nothing preventing this ping-pong game from occuring, but I doubt that the CA judge will refuse jurisdiction, so as to place you in permanent limbo. If it did, then you would have no choice but to appeal on grounds that your fundamental rights to custody are being denied by an idiosyncracy of the UCCEJA, and that the CA court must exercise jurisdiction in order to provide you with due process of law.

>2. What do you think of this?

The attorney may be green, but she may inadvertently create a very knotty problem of first impression for the court and thereby keep you from any custody exercise until the matter can be heard on appeal.

In my opinion, your attorney needs to emphasize that FL has already relinquished jurisdiction to CA, and that it would be fundamentally unfair to permit the other parent to utilize the legal system to thwart your reasonable exercise of custody, because to do so is to announce to parents that they can avoid any responsibility to the other parent by simply removing their children from CA. This is not fair play and substantial justice.

But, it "is" a very interesting legal argument.

[mishelle2]

OK, SO I spoke with atty office today, and .... atty went through case with fine tooth comb, he said exactly what you said and he also said that he believes that if the bm would have given the FL courts a true copy of the child support order(she only submitted a copy and you cant see parental relationship on it.. so its a dr'd copy) that her case would have been tossed in the first place, as the judgement clearly states:
 JUDGEMENT ESTABLISHING PARENTAL RELATIONSHIP AND CHILD SUPPORT: THEN IT SAYS: THE COURT PURSUANT TO ... OF THE CA CODE OF CIVIL PROCEDURE, HEREBY RETAINS JURISDICTION WHICH PERTAINS TO THIS JUDGMENT.

my atty is preparing a response to her dec.. and well see monday how it goes... However I am confident in my atty, as I have heard the judge tell other attys to call him for clarification as to what the law means.

thanks soc...

[mishelle2]

Soc,

 Just wanted to let you know how it went, .. well we were in court all but 3 minutes, her attorney started in about jurisdiction, my atty cut her off reminding judge of dismissal in FL and the judgement for parental relationship.. judge said case in FL was dismissed, CA should have had jurisdiction entire time, DAD has always had daughter for summer and this will continue, dad will have whatever dates he wanted and parties will have mediation while child is here and child can be interviewed. DAD will pay for entire airline ticket and mother will send him a  check for 1/2 immediately.

Well bm blocked all emails, when I tried to send airline itinerary, therefore I faxed them to her work, and my attty faxed them to her atty. So.. we'll see if she is going to put her on the plane next Sat.

but I do have a question

in bm's responsive declaration, she didnt ask for any custody/visitation she only put this should be litigated in FL.

1.Doesnt she have to ask for what she wants prior to mediation?
2. If she doesnt what happens?

thanks..

[socrateaser]

>in bm's responsive declaration, she didnt ask for any
>custody/visitation she only put this should be litigated in
>FL.
>
>1.Doesnt she have to ask for what she wants prior to
>mediation?

Nope. Mediation is mandatory in CA -- the court must order it. You can request to have the court waive it if the parties are too estranged for mediation to be successful, but it's not a good idea, because it may imply unccooperativeness on your part. Whereas, if you have mediation and the other parent stonewalls, then the judge will know that you tried, and failed to find any common solutions.

>2. If she doesnt what happens?

Nothing. You have mediation and then if no settlement, you go to trial. Unfortunately, the court has already demonstrated a preference for maintaining the status quo, which basically means that unless you can show some serious abuse on the mom's part, or she just refuses to show up, summer vacation is what you'll end up with after trial.

So, be careful about how you spend your money. Your attorney may want to "fight for justice," which may make you feel good, but at what price? Make certain that he levels with you about your chances and if they're not extremely good, then tell him to minimize the trial time and just ask the court to give you the summers.

[mishelle2]

Soc,

Right now, What I have asked for in my petition is :  Every summer, every other Winter and Spring break (joint legal/joint physical)
However when mother responded she didnt say anything about what she wanted, I was just curious if she would need to submit something prior to mediation, as in the past with my sons case, both parties said what they want so the mediator knows what to mediate..  I am all for mediation as I have bent over backwards attempting to compromise, to be stonewalled by bm. My attorney is pretty straight up, he has yet to tell me to ask for the impossible (with my sons case) so I am confident he'll do just as good with this one.
However our daughter is almost 13 (in OCT) and she has always wanted to live here with me, if she is interviewed and says I want to stay here with my dad..  (I know you dont read tea leaves but.. )

What will happen if child states to mediator she wants to stay here in CA?

Any other suggestions?

[socrateaser]

>>What will happen if child states to mediator she wants to stay
>here in CA?

Standard court-ordered mediation is a one-time meeting with the parents to try to get them to hammer out a deal. The mediator either reports an agreement back to the court or that no agreement could be reached.

If you want a more sophisticated homestudy and meeting with child, then you file a motion for a 730 evaluation.

>Any other suggestions?

If the child wants to live with you, then you want that 730 eval. The court will appoint a neutral evaluator and more than likely will rule along the lines whatever the evaluator recommends.

PS. Start a new thread with your next post. This thread is out of control and is pushing everything else out of view. Thanks.