Interstate Custody Help

[Lyrael924]

My husband is the NCP of an 8-year-old boy, parents were never married. The original child support order was entered in the State of Hawaii, and my husband was not present at the hearing because he could not afford a $1,000 flight to Hawaii. Because he was not present, visitation was "suspended until further order of the court" - no specific reason or elaboration on that. Just for the sake of clarification, that case was filed by the CSEA in HI, I assume because the mom applied for state assistance.

Now his son resides in Oregon, and has for the last 8 months. We are in the process of filing a "registration of an out-of-state custody order" and have served the CP with this information. Our intention is to file for an ex parte order to have the original judgement modified to include parenting time for my husband, since they now reside in the continental US, and the child is old enough to leave his mother for out-of-state visitation.

My H has tried in the past to negotiate times for him to visit with his son, but the CP wants him to pay for plane tickets for her and his son, so she can be present at all times. She refuses to let my H tell his son that he has a younger brother, and that younger brother is now 3. The point is, she has refused all his attempts to negotiate reasonable visitation outside of the courts.

The CP has been telling us all summer that she and the child are moving to South Carolina. They were supposed to move in early June, and now she is saying again that they are moving in a week. She has refused to provide us with their expected address in SC, because she believes that my husband is trying to file to reduce his child support.

My husband and his son have stayed in contact via letters (from my H, obviously) and phone calls, but they have not seen each other in four years. My H and the mom lived together in both Hawaii and Illinois, then mom moved to Hawaii under the guise of a vacation. My H moved to Hawaii twice to attempt to establish a relationship with his son, and was sometimes allowed to see him. He went back to Illinois to go to school and get a job that would allow him to pursue legal action regarding visitation.

 Three months after he left, the court order was entered regarding child support.

My questions are:
1) When we attempt to serve copies of the signed ex parte order (assuming that it is, in fact, signed!), should we attempt to serve her former address first if that is all the info that we have?

OR

2) Should we apply immediately for a court order allowing alternative service?

and

3) Can we serve her by sheriff in SC once we have her address, even though the action is in Oregon?

4) Are we crazy to try to ask for parenting time when my husband hasn't seen his son for four years?

[socrateaser]

Questions for you:

1. In which State does the father currently reside?

2. What is the ex parte order (exactly what relief are you requesting)?

[Lyrael924]

>Questions for you:
>
>1. In which State does the father currently reside?
>
He resides in IL, and has for the past 4 years.

>2. What is the ex parte order (exactly what relief are you
>requesting)?

It is a packet of court forms requesting that visitation be granted as outlined in an attached parenting plan - we are asking for:

Alternating Thanksgiving breaks and Xmas breaks, alternating Spring breaks, and for 2 weeks in the summer.

We would also like to request access to school and medical records, but haven't yet put that in the parenting plan. We have not filed this yet, because we have to register the Hawaii judgement first.

Sorry I forgot to include that extremely important info. *blush*

[socrateaser]

OK,

1. You don't need to register the HI orders unless you want the court to enforce them. From what you describe, the HI orders don't grant you any visitation, so I don't know why you're trying to enforce nothing.

2. What you want is to petition the court to modify the original custody determination to permit you reasonable visitation. At the moment, the parent and child have resided in Oregon for more than 6 months, therefore an Oregon court can exercise jurisdiction to modify the orders.

3. However, if the parent and child leave the jurisdiction, the Oregon court will probably refuse to assert its jurisdictional authority, and you will have wasted your energy. So, you are probably better off filing your petition in South Carolina (SC) , even though the parent and child will not have lived therein for the required jurisdictional period, because the SC court will recognize the practical reality that none of the other courts really are in a better position to adjudicate the matter.

4. If, on the other hand, you believe that this latest move is a ruse, and that no move is actually in progress, then I suggest that you file your petition in Oregon.

5. If you came to me for representation, I would suggest that you file a petition to modify custody under the UCCJEA, alleging the parent and child's residence for more than 6 months in Oregon, and then I would simultaneously ask the court to issue an ex parte emergency order show cause (OSC), to not relocate the child until a hearing could be held on the South Carolina move issue. Then I would have both the petition and the OSC served simulataneously on the parent.

6. In Oregon, an attorney or private investigator can lawfully obtain address information from the DMV. Private citizens cannot without a court order. I suggest that you avail yourself of one of these persons and obtain an accurate address, and then you hire a process server to wait on the doorstep and serve the summons, petition, and OSC.

7. This is all best accomplished by hiring an Oregon attorney. If you try to do this from IL without local representation, you're gonna get lost in the shuffle.

Frankly, if you do not intend to hire a local attorney to represent you, you may as well wait and see if the mother and child move to SC, because you will probably just be spinning your wheels in Oregon.

[Lyrael924]

>OK,
>
>1. You don't need to register the HI orders unless you want
>the court to enforce them. From what you describe, the HI
>orders don't grant you any visitation, so I don't know why
>you're trying to enforce nothing.
>
We did this because the court clerk refused to let us modify the judgement unless the judgement was registered in the State of Oregon. We would have had to file a new initial case with the $329 filing fee. Money is, unfortunately, a big issue for us, so that is why we did this.

>2. What you want is to petition the court to modify the
>original custody determination to permit you reasonable
>visitation. At the moment, the parent and child have resided
>in Oregon for more than 6 months, therefore an Oregon court
>can exercise jurisdiction to modify the orders.

Thanks - this is what we thought.
>
>3. However, if the parent and child leave the jurisdiction,
>the Oregon court will probably refuse to assert its
>jurisdictional authority, and you will have wasted your
>energy. So, you are probably better off filing your petition
>in South Carolina (SC) , even though the parent and child will
>not have lived therein for the required jurisdictional period,
>because the SC court will recognize the practical reality that
>none of the other courts really are in a better position to
>adjudicate the matter.

On the other hand, though, we can't file anything in that state until they live there, and only if we get the actual information from her as to when this move is taking place, and where she is moving to.

>4. If, on the other hand, you believe that this latest move is
>a ruse, and that no move is actually in progress, then I
>suggest that you file your petition in Oregon.

I don't know that it's a ruse. The mom just seems to lack follow-through - she really had no specific reason for not moving in June, and has since then mentioned Philadelphia as well (that is complete hooey, we think.)
>
>5. If you came to me for representation, I would suggest that
>you file a petition to modify custody under the UCCJEA,
>alleging the parent and child's residence for more than 6
>months in Oregon, and then I would simultaneously ask the
>court to issue an ex parte emergency order show cause (OSC),
>to not relocate the child until a hearing could be held on the
>South Carolina move issue. Then I would have both the petition
>and the OSC served simulataneously on the parent.

By heaven, I wish we had enough money for an attorney.
>
>6. In Oregon, an attorney or private investigator can lawfully
>obtain address information from the DMV. Private citizens
>cannot without a court order. I suggest that you avail
>yourself of one of these persons and obtain an accurate
>address, and then you hire a process server to wait on the
>doorstep and serve the summons, petition, and OSC.
>
>7. This is all best accomplished by hiring an Oregon attorney.
>If you try to do this from IL without local representation,
>you're gonna get lost in the shuffle.
>
>Frankly, if you do not intend to hire a local attorney to
>represent you, you may as well wait and see if the mother and
>child move to SC, because you will probably just be spinning
>your wheels in Oregon.

Thank you so much for your advice. I think we will have to wait and see, because right now we can't do the bigger filing fee all at once (I know that's pathetic), and we definitely can't afford to hire a lawyer. Legal aid would be an option if we lived there, but unfortunately, we don't.

Thank you again.

[Lyrael924]

One more question, if I may...are there any self-help legal websites for South Carolina or forms sites for modifying existing judgements/orders?

Thanks again for the help.

[socrateaser]

>One more question, if I may...are there any self-help legal
>websites for South Carolina or forms sites for modifying
>existing judgements/orders?

I really have no clue.

On the issue of registering the order, I can see that it might be cheaper than to file a new case -- hadn't really thought of that as a rationale -- silly me.

If you really don't think that the mother is moving, then by all means, register the order and then file to modify on grounds that mother and child has been in jurisdiction for greater than 6 months. But, be sure to ask for temporary orders preventing the child's relocation during the pendency of the action, on grounds that the mother has threatened to move the child to South Carolina, in order to avoid being subjected to a modification hearing. Which is the big problem. If you were in Oregon, you could go into the courthouse and ask a judge to issue that ex parte order immediately, and then serve it on the mother...and that would keep her from leaving.

The problem is that the law permits courts to refuse to exercise jurisdiction and that's what I'm afraid of here, if the mother and child move after you file the case. That is, even though you will have personal and subject matter jurisdiction over the mother and child, the court may just say, "They've moved, so you should sue in SC." It really depends on the judge, and the fact that you don't live in Oregon gives the judge an especially free mind to ignore your request. You don't pay taxes in Oregon, Oregon will receive no Federal matching funds for the child support obtained, neither you nor the mother or child is a registered Oregon voter, and on and on, if you catch my drift.

Judges get paid the same whether they hear cases or not, so if they can rationalize a means to easily avoid hearing a case, that's what they will usually do.

[Lyrael924]

A few further questions...

1) Can both SC and Oregon refuse to exercise jurisdiction?

2) If we don't know if she moves or not, and don't have any reasonable knowledge of her address except the one in Oregon, can we just try to serve her at that address and, if personal service fails, file a request for alternate forms of service that don't require us to hand papers to her personally? I guess I am asking if we have the, um, obligation to inform the court of a move we have no proof or knowledge of? We last talked to her last week, and she has not responded so far to our messages left this week.

I hope these questions don't make me sound weaselly or unethical. It's just that the mom has threatened to leave and not let us know where she is.

If we don't know where she is, and her last known address and place of residence was Oregon, can the right of refusal to exercise jurisdiction happen?

Please tell me to go jump in a lake if these are too many questions. I really appreciate the help.

[socrateaser]

>A few further questions...
>
>1) Can both SC and Oregon refuse to exercise jurisdiction?

Yes, but they both won't. The judges will confir and someone will take jurisdiction.

>2) If we don't know if she moves or not, and don't have any
>reasonable knowledge of her address except the one in Oregon,
>can we just try to serve her at that address and, if personal
>service fails, file a request for alternate forms of service
>that don't require us to hand papers to her personally? I
>guess I am asking if we have the, um, obligation to inform the
>court of a move we have no proof or knowledge of? We last
>talked to her last week, and she has not responded so far to
>our messages left this week.

You need to pay a private eye or attorney to confirm her address with the DMV. Then have a process server go there when it's likely she will be home and serve her.

And, yes, you have to testify truthfully, and I can't suggest that you do otherwise or I'm conspiring to defraud the court.

>If we don't know where she is, and her last known address and
>place of residence was Oregon, can the right of refusal to
>exercise jurisdiction happen?

If you serve her personally, then you won't have a problem. If you can't prove service, then you won't get your hearing. If you have no credible evidence as to her whereabouts and you have not made a diligent effort to serve her, then there's no way that the court will permit service by publication. So, you're wasting your efforts in this regard.

>Please tell me to go jump in a lake if these are too many
>questions. I really appreciate the help.

It's summertime. Jumping into a lake can be fun.

[Lyrael924]

You know, I could use a nice cold lake. That is the end of my questions. You've confirmed what I thought, and since i am not a fan of doing illegal things, I guess the next step for us is to wait and see if she returns our most recent phone calls, so we can at least figure out what state she is located in. Then we will go ahead with your suggestion of the attorney or private eye.

Thanks very much, Soc. We'll keep you updated on things as they progress.

You're amazing! :)