NJ/NY Jurisdiction Continued..

[socrateaser]

>Question regarding the venue shopping.
>
>1. How would you argue that in court?

Venue shopping is not unlawful or inequitable, although it is not favored, so there's really nothing to argue.

>
>She lives in Ulster County, filed 2 petitions in that county
>where she stated her home address was in that county.
>
>We served her in Ulster County both a Dr office and her home.
>
>2. Can she get away with filing in another county using a temp
>address in that county??

No. If she were to file in a different county, then you could produce her affidavit/petition from the other county and ask the court to estop her from claiming multiple primary domiciles.

>
>3. If you were my NJ attorney and was presented with the NY
>paperwork but didn't practice in NJ would YOU consider that
>service??

You mean didn't practice in NY. It doesn't matter. The judge said that you were to be "personally" served. There's no getting around that order. It means that a third party must hand "you" the summons and complaint/petition.

>4. Can the NJ judge order me to go to NY for a evidentary
>hearing on jurisdiction?

Hmmm. Interesting question. Technically, yes, but I can't imagine why he would. Even if you were ordered, you could still state that you were specially appearing for the sole purpose of challenging the NY court's jurisdiction, and thereby avoid submitting by your presence in the jurisdiction.

>5. NY judge's order stated NJ judge must have the complaint &
>paperwork by 12/15. NJ judge told us he got it on 12/16, is
>this grounds for dismissal in NY?

Probably not -- the issue is whether you have had notice "reasonably calculated under all the circumstances to apprise you that a legal action is pending against you, and so that you may appear and defend."

That is the constitutional due process requirement, and it can be met regardless of a court order or State statutory law.

>6. Would I have to withdraw the proceedings in NJ prior to
>filing for custody in NY?...if so how soon?

Yes, well you need the NJ judge to enter the order to dismiss. Then, if your new filing has a date and time later than the date and time on the old filing, you're good to go.

>
>7. Can I file anything to put that NJ hearing "on hold"
>rather than withdrawing until I've filed in Ulster County.

Yes, but only if you state in your new filing that there is a case pending that you intend to move to dismiss as soon as the other party is served in NY.
>
>I'm trying to have something filed in Ulster County before the
>12/23 NY hearing. I would have a NY lawyer show at NY hearing
>to serve her.

Discuss it with the NY lawyer. The problem is that if you file in a different county, you will have submitted to the jurisdiction of NY, and the judge of the county where your wife has filed can take jurisdiction over your case. He might defer to your filing, but I seriously doubt it, unless you can show that your wife actually is domiciled in Ulster.

>8. If NY gets jurisdiction, my goal is to have something filed
>by 12/23 in Ulster County, do I have enough time for that?

I'm confused about in which county your wife filed. I guess it wasn't Ulster. If NY gets jurisdiction, then you will be subject to your wife's existing filing, unless she withdraws it.

[TPK]

>You mean didn't practice in NY. It doesn't matter. The judge
>said that you were to be "personally" served. There's no
>getting around that order. It means that a third party must
>hand "you" the summons and complaint/petition.

Ok, so by word of judge's order, I have not been served.



>>7. Can I file anything to put that NJ hearing "on hold"
>>rather than withdrawing until I've filed in Ulster County.
>
>Yes, but only if you state in your new filing that there is a
>case pending that you intend to move to dismiss as soon as the
>other party is served in NY.


Ok, so If NJ-NY judge coversation on jurisdiction ends up with NJ judge deferring to NY I can go right up to Ulster County and file and then dismiss my NJ suit?


>
>Discuss it with the NY lawyer. The problem is that if you file
>in a different county, you will have submitted to the
>jurisdiction of NY, and the judge of the county where your
>wife has filed can take jurisdiction over your case. He might
>defer to your filing, but I seriously doubt it, unless you can
>show that your wife actually is domiciled in Ulster.

We can prove she lives in Ulster County which is where OOP & CS petitions were filed. We're gambling that NY 12/23 in Orange County hearing will be dismissed based on poor service, that would give us the chance to go to Ulster County and file.


>>I'm confused about in which county your wife filed. I guess it
>wasn't Ulster. If NY gets jurisdiction, then you will be
>subject to your wife's existing filing, unless she withdraws
>it.

As stated before, OOP & CS petitions were filed in Ulster County where she has a home. This latest NY filing was done in Orange County where she's using a temporary address.



Questions.


1. Does my wife have to be served before anything is filed by me in Ulster County?

In NJ it seems we have to serve 1st then file.

2. If 12/23 NY hearing in Orange County is dismissed based on service, and we serve her at that hearing with our Ulster County filings, would the Ulster County hearing take precedence as it's the only currently filed custody action?


If you'd like to receive copies of the pleadings and all paperwork, I'd be happy to send them to you. Please send me a personal message and I'll have it all sent to you tomorrow via mail. To fax all this would take 2 hours.

TPK

[socrateaser]

>Questions.
>
>
>1. Does my wife have to be served before anything is filed by
>me in Ulster County?

No. You file the original complaint in Ulster County Court and thereby obtain a case number, then you write the case number on the copies of the summons and complaint, then you serve a certified true copy of the summons and complaint on the other party, then file/return the original summons and a proof of service with the court.

>2. If 12/23 NY hearing in Orange County is dismissed based on
>service, and we serve her at that hearing with our Ulster
>County filings, would the Ulster County hearing take
>precedence as it's the only currently filed custody action?

Yes, assuming that you have already dismissed (or you will immediately thereafter dismiss) your NJ action. But, watch out, because if you have a process server appear at the Orange County (OC) action for the sole purpose of having your wife served, you will be tacitly admitting to having actual notice of the action there, and THAT means that the NY judge just might reverse his dismissal of the suit and you'll be stuck in Orange County Court.

>If you'd like to receive copies of the pleadings and all
>paperwork, I'd be happy to send them to you. Please send me a
>personal message and I'll have it all sent to you tomorrow via
>mail. To fax all this would take 2 hours.

(Soc muses: "Oh, a wise guy, eh?")

Thanks, but I'm already in deep enough. Any deeper will require a substantial retainer.