questions about fathers rights

[axr6089]

I have resided in New Mexico with my wife and 2 kids ( 7 daughter, & 14 mo. son) since 2002. Me and my wife seperated on the 6th of december after discovery of her affair. We did sign a seperation agreement that stated niether would take the kids out of state without permition, which is noterized but was not filed.
  On the 16th I called her and was informed that she has left and gone to connecticut where her family is. I have talked to my daughter but my son and I cant talk due to his age. on the 19th I did file for divorce and she has since been served

1. what are my chances of getting them back in the state?

2. should I seek full custody or joint in respects of keeping in state

[socrateaser]

>1. what are my chances of getting them back in the state?

Your chances are getting worse every day. The agreement is unenforceable, so while it definitely is proof of bad faith on the other parent's part, and may be useful to get a restraining order, it is not in and of itself a legally binding document. The way to stop the other parent from leaving the State with the children is to file for divorce and/or custody, and have the court issue a restraining order. If you don't do that, then the other parent is free to take the children wherever she wishes -- as are you. Technically, you could go to CT and pick the kids up and bring them back with you, and without the other parent's permission, however I wouldn't recommend this because it could get ugly and physical and you don't want your kids in the middle because it will make you look as bad as the other parent.

But, you've been sitting on your hands for over a week, so the court will wonder why you didn't do something on the 17th, and you will need an answer better than just, "I couldn't afford to hire an attorney," because that will not cut it. Better to just say that you were unable to confirm the children's location and now that you have, you have filed for a restraining order to obtain their return.

However, NM still has jurisdiction, and you can try to get a restraining order now, instructing the other parent to return the children to NM. Then, you'll need to serve the order on the other parent, and if she doesn't obey, you may be able to get a warrant issued for her arrest and detention of the kids for return to NM.

But, every day that goes by and you do nothing, your changes of getting that order gets worse and worse. Furthermore, if the other parent alleges that you have abused the kids or threatened them, then CT can issue a restraining order and you will have hell trying to get NM to assert jurisdiction and demand their return. So, by waiting you are giving the other parent an opportunity to get into a court and foil your changes entirely.

>2. should I seek full custody or joint in respects of keeping
>in state

If you don't, then the court will wonder what's the matter with you. You're kids have been taken away, and on your facts, for no reason other than vindictiveness on the mother's part. If there is no physical or emotional abuse involved, then you damn certain should ask for sole custody. Ask for the sky, and hopefully settle for more than you would have received if things were "fair."

There is no such thing as fair in family court, by the way, and you need to get it completely out of your mind RIGHT NOW, that your spouse was ever someone who loved you, because if she left, then she doesn't anymore and you are at an extreme disadvantage if you allow your emotions to get in the way.

Repeat 1,000 times a day, "It's just business, not personal. I have rights, and I will ask the court to enforce them for me." Get it?

No more emotion. There are lots of other women and no such thing as a soulmate or perfect match!

Apologies to all of you out there who believe otherwise, but for every person I've known who believes they've met the "one," I can name 100 people who have been divorced or cheated on by their former "one." So while it may be gloriously satisfying to believe in Cinderella stories -- in court, the fairy tales must be put away, and only the brutal reality of life can be allowed to intrude. Then, when you get everything straightened out, you can go back to looking for the next "one."

[axr6089]

so If I uderstand correctly I should file for a restraining order tomarrow and on what should I base this restraining order on, solely that she took the kids?

[axr6089]

If I understand correctly,Isn't the temporary domesti order  a restraining order regardless if she was not in the state at the time

[socrateaser]

>If I understand correctly,Isn't the temporary domesti order
>a restraining order regardless if she was not in the state at
>the time

I think you'll find as you continue here, that I pretty much take your posts as if they are the only facts that exist regarding your case. You are currently referring to a "temporary doestic order," and asking me if it's a restraining order. However, you have never mentioned this order previously. Your prior post refers to a "separation agreement." And agreement is not a court order, unless a judge signs that agreement and thereby orders it.

Point is, I am operating on the premise that there is no domestic relations case currently pending before a NM court (or any other court). If this is true, then everything I've told you so far is also true. If there IS a case pending, and you have in your possession a signed stipulated agreement, that but for a judge's signature would be a restraining order, then you already have everything you need to get your kids back from CT. All you need to do is have your attorney go into court and ask the judge to order the agreement and then order the children's return to NM.

So, if there is NO case pending/already filed petition for divorce/custody/support with the court, then you need to file one immediately and further ask the court for a restraining order instructing the other parent to return the children to NM. Then, you'll need to have the CT sheriff or a private process server serve the documents on the other parent, and then file that proof of service with the court. As soon as that happens, if mom don't bring the kids back, then the court can issue a warrant for her arrest.

But, until that happens, you're SOL.

Conversely, if there IS a case already pending/filed, then you just need to go into court and ask the judge to order the mother and child(ren)'s return to NM, because she is already under the jurisdiction of the court, and she will get her arse kicked for leaving prior to the case's conclusion or obtaining the court's prior permission to leave the jurisdiction with the children.