Jurisdiction and Custody awarded to me...now 80 days later being disputed.

[cats1717]

HI. Here are my specifics. Hopefully I'm not letting anything out; if I do please ask and I will be more than happy to explain. First let me state that I was divorced in Minnesota 6 years ago where my original custody agreement was issued. Ex now lives in CO and I in PA...and we have for the past 5 1/2 years. Child will be 14 years old in 2 months.

*In June 2004, I filed for a custody modification in PA due to my son's allegations of alcohol abuse by his mother and her drinking and driving; he wants to live with me, my wife and his half brothers in PA; he claims to have been abused by stepdad also.

*Ex was served with papers; she never responded...claiming to have been served incorrectly. That was found to be untrue. Instead she started her own proceedings in her state (colorado); by trying to Register our Custody Agreement in CO and to have PA throw out anything I requested or that awarded me...stating CO had jurisdiction.

*The hearing in PA came and went on without her. PA took jurisdiction because: 1) she didn't show up or respond, 2) there was no record of the MN custody order being registered in CO, 3) the custody order was almost 6 years old and neither party lived in the orginating state, therefore it needed modification.

*Since PA took jurisdiction and there was no response on my ex's behalf in any way, I was also awarded physical custody. There was stipulation put in the order that forbids her or anyone from consuming alcohol in my sons presence. From there I/we were to try to work out visitation for my ex to see our son and present it to the court to file...never happened since she won't talk..instead she keeps filing motions in the CO court and now in PA. There's been absolutely NO INTEREST in seeing him just getting him back. My son continues to be in my custody, plays football, is doing well in school which he didn't when with his mother, sees a psychologist weekly and is making friends.

*Several motions, etc were filed in CO by my ex and her attorney..1) asking CO Court to take jurisdiction and ask PA to throw out their ruling 2) to have a sheriff come and remove our son from my home and return him to his mother. There were more but the judge in CO threw it all out.

*All motions, etc were put aside by the CO Court and she was ordered to go to PA court and be heard there. Today was her day!

So now we are at today, Sept 24, 2004. Instead of ordering that the Custody Order stands as is, the Judge today didn't make a decision yet because: 1) he wants my attorney to make a letter stating addressing whether "Subject Matter Jurisdiction be raised after preliminary objections" and "Should the PA court allow Mom to file Preliminary Proceedings even though over 70 days has passed the 20 day time limit." What I'd like is for anyone who knows anything about the two things the Judge is questioning to please let me know ASAP. Thanks in advance for any and all help, it's greatly appreciated!
This all burns me up because my childs welfare is being put on the back burner while people fight over who should be in charge of the case. In the mean time he gets deeper rooted here and more depressed over not knowing if he is going to ripped out of here.

[JT]

Don't swaet it, you are probably better off if it takes longer. The current Status Quo custody will do a world of good. Also, with him continuing to see a pschologist and telling them he wants to stay certainly cannot hurt. Tell him to just be a kid and enjoy himself, things will turn out they way they should be. Also, in PA, when does the child have a right to say where they want to live. The judge is probably just covering his butt to make sure his ruling cannot be appealed. Take Care, JT

[Stepmomnow]

First, I do not know PA or CO law.  However, the judge is telling your attonery to address the jurisdiction issues before he decides the case.  He may actually be doing you a big favor.  If your son has not been with you for 6 months, she has a shot at getting him back if the only evidence of abuse you have is from your son (no CPS reports or school intervention).  If the judge allows you to stall long enough so that you have your son for more than six months, it may be much easier for the judge to go with the "status quo" ie give custody to you.  Ask your attorney if this is a possibility, and if it is, you and your son will just have to live with the uncertainty for a while and have faith that the judge will be reasonable.

If I were you, I would be sending certified letters offering to allow Mom to see your son, because her lack of visitation when he is with you will be a factor in the judge's decision.  Encourage the relationship  and let her look like a jerk.

[cats1717]

I was awarded physical custody of my son back in June and still have him.  He has missed 6 weeks of school already in Colorado, which would make it so hard for him to go back for school there.  I have him in a special reading class because he has an extremely low reading level for an 8th grader...school wasn't priority at his mothers according to him.  

Thanks for the advice!  I do encourage him to call his mother and other family back in Colorado against his wishes.  But your idea for visitation is GREAT!  Thanks.

[cats1717]

  There is no magic number/age in PA for a child to "chose" where she/he lives but the older a child is the more their wants are taken into consideration.  In PA they do listen to a childs wants and being that he is almost 14 my attorney said it is normal and usual that a boy wants to live with his Dad.

Thanks!

[Lawmoe]

For a Court to take a case, it must have both subject matter jurisdiction (jurisdiction over the issue ) and in personam jurisdiction (jurisdiction over the person).  These are constitutional issues that can always be raised.

Since your ex did not appear in PA she has not submitted herself to PA jurisdiction.  As a result, she can still raise that issue.  To do so, she is allowed to make a special appearance (where she appears without submitting to the Court's jurisdiction) to argue the jurisdictional issue.

What the Judge has done in your case is to dot all the "i's:" and cross all the "t's" so that it would be difficult and, perhaps impossible for your ex to reopen the case in the future. This is to your benefit and will save you money in the long run.  The special appearance will be made by allowing each party to send a letter brief arguing the jurisdictional issue. Based on those submissions, the Court will rule on jurisdiction.  If the Court finds that PA has jurisdiction, which is likely, your ex will then likely be entitled to appear on the merits sincee her failure to respond or appear was based on a jurisdictional challenge.

In short, you will have to argue your case in PA with you ex appearing if she so desires.  




Specifically, the Court is allowing the parties to argue in letter briefs why the PA COourt has subject matter jurisdiction

[cats1717]

So your thoughts are that, even though 80 days has passed since PA issued a Court Order giving me Physical Custody, my ex still can come and raise an issue that should of been addressed back in June?  

She lost all her motions in Colorado and sent here.  I suppose nothing is easy when it comes to the law.  I hope you are correct and the case will be heard here on Merit as then I know I won't lose my son.  It's just the getting to having the Merit heard that is the hard part.  Had she done the proper thing 3 months ago by responding we wouldn't have gone through 3 courts already.  UGH!

[Lawmoe]

That is what I am saying is likely.