I am trying to help someone out with a custody case. Here are the relevant facts.
Mother and Husband of child born during marriage, and child, live in County A.
Alleged father lives in County B.
Neither party has nor can afford an attorney. Both Mother and Alleged Father are Native American.
Alleged Father filed a Petition to Establish in County B.
The Two courts are HUNDREDS of miles from each other and the Mother can not afford to drive to the court appearances.
Mother lacks the necessary skills to defend herself in the courts and feels railroaded by the Court Officials.
A Response was filed prior to mediation with a declaration stating that the court in County B lacks jurisdiction.
Mother Appeared at mediation. Stated that she was challenging Jurisdiction.
She was told that "We don't care what you claim, we are ruling on this case and we will take your child if we need to."
My question is this: What can be done to back this court off, if anything? What would happen if a Petition was filed in the correct jurisdiction? What would you do if you were in this situation (Experts).
Thanks for your feedback in advance.
Has the mother filed in her family court? Has mother gone to the legal aid office at family court to see if she qualifies for legal aid?
Even if she fights where the case will be heard, the case WILL be heard. Some courts make you go to mediation to try and sort it out without court. Was paternity test ordered and established? Next would be custody and parenting plan (when each parent will have child). How old is child? If child is younger than school age, it will be a little easier to make parenting plan without going around school times/days.
"Alleged father"? So she's not sure he's the father? If they were married during conception or birth, he IS the legal father unless it's proven otherwise and even then he may be considered the "de facto father" since he's been in the position of father since birth.
Tigger, Ocean: The child was born during a marriage that is still a marriage. The alleged father was the result of an affair, so he is alleged until a court order says he is the father with proof.
It is my contention that the court has no right to rule on the case because in order for them to have jurisdiction, the child must have lived in that county for the 180 days prior to filing. The law is specific in this. Clearly this is an abuse of authority and must be challenged.
Hmmm....file to establish paternity in the mother's county too? And at the same time,state that county ABC is claiming jurisdiction because the father lives there, but the mother and child have never lived there.
BUT -- I'm not so sure you're right.
See....the father has lived there (I am assuming) the entire time. He may take the position that the mother fled the county.
BOTH parties have to not be in the original county/state for jurisdiction to move and follow the child.
It may be a case of he who files first when it comes to establishing paternity particularly when legally the child's father is the man whom she is married to until paternity is challenged.....I think.
NONE of us are attorneys....just been through many manual washing machines.
Yeah I agree with MB, from reading over 10 years of cases on here....father filed first, and he could say that baby was conceived there and mother had relationship in his town. Has mother tired to file in her county?
Custody usually is not even entertained until the courts deal with the paternity. Did they have the paternity test yet?
Good point Ocean.....I'm guessing father filed for paternity and custody all at once.
BUT if paternity was established by a court -- then I'd lean towards that court having jurisdiction today too for whatever follows.
When both parents are living in California, barring exceptional circumstances, the California state courts would have jurisdiction over the custody matter. Therefore, child custody cases are most often decided in the county court where the child has the most contacts, such as residence, school attendance, child care, etc.
Law Offices of James V. Sansone
In this case, Residency, Birth mother and Legal fathers residence would be proper.
sounds like mom needs to hire an attorney then to fight that fact....and she's being ignored because she's pro se.
That's one of the primary problems with Family law courts, you can only get as much Justice and Law as you can afford. She can't pay an attorney so she will likely lose custody of that child. Shameful.