Dismissal based on Lack of Jurisdiction

[NYParent]

Hi all!

I am hoping someone can help me here.  I am going to give a quick summary to my issue:
Mom and child live in TX while I live in NY.  Original Custody and Visitation order done in NY.  NY has continual jurisdiction over the case under UCCJA because I still live in NY.  I entered a Petition for Modification of our Parenting Agreement.  I am not seeking change of custody, we currently have Joint Legal Custody, I simply want the agreement to be more detailed and to address new issues that have emerged.  The Judge in NY agreed that the circumstances warranted a modification.

A few days later I got served with a citation from TX.  Mom made a Petition in TX to have Custody and Visitation Modified.  She's petitioning for full custody and is asking for Supervised or Restricted Visitation (basically because she doesn't want any g/f to be around the child).  Along with the modification she's seeking child support (I've been sending money directly to her).

My question is, how do I get the custody modification portion dismissed?  I don't have a problem with the Child Support (I think is best to have the state deal with it at this point), but TX does not have jurisdiction and I am not willing to have it transferred (especially because she's basically trying to overturn everything that was settled in NY).  Do I have to hire an attorney to handle this (would prefer not to) or can I file a Motion for Dismissal based on Lack of Jurisdiction myself?  According to the citation I have to file a written response with the clerk within 20 days....can I ask for dismissal there? 

I am just a little confused about TX procedures.  I have found that unlike NY, no one in the court is willing to provide any help or answer any questions.  Their answer was "hire an attorney."  I was just wondering if anyone dealt with the same issue that can provide some assistance. 

Thank you in advance for your time and any help you can provide.

[snowrose]

I'm not a lawyer and I can't suggest much of anything about how things can be handled, but the one thing I would say is that if you don't want even one thing handled in TX then don't let anything be handled in TX.  They're not going to let you keep half your case in one state and half in another. 

[Momfortwo]

You need to file a motion in Texas to have her case dismissed due to lack of jurisdiction.  Does your attorney know an attorney in Texas that could do this?  If  not, you will need to find one. 

If she wants a court order for child suppot, she needs to file in NY, where jurisdiction is.

[MixedBag]

I agree -- and if you can, hire a TX attorney -- I believe if Davy pops in he might be able to help with TX stuff.

At the very least, file a pro se motion to dismiss, quote the UCCJA law in it and send it via traceable mail to the TX court.

make sure your motion to dismiss is notorized with your signature.

[NYParent]

Thank you very much for your suggestions.  I was unaware that I could settle child support issues in NY.  I will look into this.  In NY Family court does not get involved in child support, that's why I thought it had to be done in TX.

Can someone point me where I can get a Motion to Dismiss form?  Or is this something I type myself?

Yeah I am hoping that Davy can give me some suggestions, I know he's very familiar with the TX system. 

[MixedBag]

Different states, different forms, different different....doubt there is a form really.

Yes, you can type it up yourself.

Make the header just like what you received in the mail.

Make the subject:  Motion to Dismiss

Then start talking -- but not normal talk, legal terms "Comes now the Defendent with a Motion to Dismiss the Plaintiff's actions based on the fact that this court does not have jurisidiction over the pending matters.  According to the UCJJA, paragraph X, "quote it", jurisdiction is clearly in County, State, because I still live there, never have moved from there, and plan on living there in the future.

Respectfully request the court dismiss all pending litigation against me immediately.

HOW's that off the top of my head?

And nope, I'm not an attorney -- just someone who's been around for a while.

[Davy]

Sorry my time is limited right now so I'll try to backspace fast. l can tell ya what my experienced attorneys did in the effort to name TX the ORIGINAL jurisdiction vs. IL.  Your case should be easy since NY has already been established with EXCLUSIVE CONTINUING JURISDICTION per UCCJA (both states) and PKPA (accompanying Federal statues).

By the way, I hired the IL attorney over the phone from a referral over the phone from IL State Bar assoc after asking for specific experienced interstate (UCCJA and PKPA) custody counsel. Actually I got two experienced attorneys but one remained unknown to anybody until it was appropriate...Wife had filed 200 miles from her hometown which I knew was her ultimated designation.  2nd IL attorney (free) monitored first IL attorney ( $700) and TX attorneys.  That situation is probably not relevant to your case.  All attorneys did outstanding job and except TX all were cheap (the black and white statues were crystal clear).  You need to know that TX specializes attorneys as family law specialist and my custody attorney wanted $50,000 up front and said the case would probably end up between $ 75,000 and $ 125000 depending on how the other side acted (money was not an object to her).  Needless to say, I soon learned to be Pro Se' in TX after having some dip chit attorneys stand around with their hands in my pockets.

The first action my IL attorney was to file a motion for "Special and Limited appearance exclusive to Jurisdictional issues".  In effect that prevented him from addressing any custody issues.  Technically. if he addressed or responded to custody issues might be construed as enough for IL to take jurisdiction.  Wife refused to respond to TX jurisdiction where I had already been named temporary managing conservator. She was illegally (clearly lacking jurisdiction) named temporary custodial parent in IL.

Soooooooooo....

- she may have one of those dip chit attorneys that has no fricking idea what they are doing and just assumes TX jurisdiction ignoring the NY proceedings like you lived acrossed a TX gravel road.  Then again, may be the atty knows exactly what their doing and hope you screw something up.

-  if you choose to find a TX attorney..you can probably educate with the pertinant NY, TX and PKPA statues (articles section on this site) but MAKE SURE they know this is SIMPLY ABOUT a JURISDICTIONAL MATTER and not an expensive CUSTODY isssue.  May be you can get off for
$ 0.02 cents.

- the UCCJA / PKPA allows for your NY judge to contact by phone the TX court/judge to let them know he has the EXCLUSIVE CONTINUING JURISDICTION over ALL MATTERS AND ALL PARTYS (child and both parents).  MAKE SURE your NY jurist will not relinquish jurisdiction.  TX should then dismiss on their own.
 
- you might consider a PKPA filing in NY Federal Court even Pro Se (Federal ct clerks should help).  The PKPA is much shorter and clearer than the UCCJA (more commas and semi-commas) and the MAJOR INTENT  (stated in preamble; see actual statue in law books) of the PKPA was to prevent judicial competition and re-litigation of custody matters. and the cost thereof and to prevent forum shopping (to obtain favorable rulings).

I might be able to help with a TX attorney especially if the filing is around Dallas or in north TX.

Try desperately (don't respond to TX jurisdisction; ie 20 days respond time) TX has absolutely zero jurisdiction over a NY resident ... only TX residents and for this matter by all laws everywhere TX has no jurisdiction over your child or the mother.

You might become popular with TX authorities if you tell them to go piss up a rope ... I seem to do that a lot and they seem to think I'm funny and they like me.  They understand that.

   

[ocean]

I am in NY and Family court DOES deal with child support BUT you have to ask for it. You cant go into a visitation hearing and ask for child support. NY is fairly easy to deal with by yourself as far as child support goes. It is a percentage state and will go by NCP income only. You can file yourself at the family court of your last visitation orders are. Fill it out and they will type it for you and then in a few weeks you will have a court date. She will be notified and will have to appear in NY.

You can do the same thing for visitation changes, file in family court for modification. If you want to do BOTH, they will do it together BUT you need to file two separate forms.

[MixedBag]

thanks for popping in Davy!

[Davy]

One other thing.  There is a technical legal requirement for custody orders to be registered .. I think the registration is within NY state.  Your attorney should have done this so you might check.  That is all I know about the matter except it applies to all states and is a common practice.  Others may provide the advice.

[NYParent]

Thanks for the information provided thus far.

Unfortunately I do not have a lawyer and I am doing all this Pro Se.  All the information I've gotten from everyone here has been so valuable to me through this process.

Today I got a letter from TX court saying that the custody order has been registered with the state.  While reading through it I don't have a problem with this except for one sentence which reads as follows..."A registered family order may be modified in the same manner as a family order issued by a Texas court."  Does this mean that by registering the custody order from NY in TX would be changing the jurisdiction of the case?

According to the letter I have 20 days to request a hearing to contest the validity or enforcement of the order.  I am so confused here.  Any help would be appreciated.

Thanks!

[Davy]

NYParent ... I want you to fully understand that I am not an attorney and I am only espousing the experience I had in arguments for ORIGINAL jurisdiction as a TX  resident in IL.  I had to respond because I refused to file in TX while IL demanded jurisdiction when petitioner was clearly a TX resident.   

In your case, NY has already legally anf rightfully taken jurisdiction and made decisions in full compliance of all state (UCCJA) and federal statues (PKPA).  You seem to have a full understanding that ALL MATTERS will continue under the original NY jurisdiction as long as you remain a resident of NY AND YOU DON'T DO ANYTHING THAT COULD BE PERCEIVED OR ARGUED THAT YOU RELINQUISHED NY JURISDICTION like FILING IN TX FOR A HEARING especially to contest the validity or enforcement of the order which of course you would do in NY.  Your NY judge seems to understand that he has modification jurisdiction.

As far as you know, the TX atty may have already filed in TX ....which should have raised red flags acting on a NY order against a NY resident .... and the filing was rejected.  Don't be surprised to find that TX rejected the case ... they have a hard time managing TX cases.

Since you have appropriately filed for modification in NY your ex and her atty don't want to fight your NY petition in NY and, of course, are trying to get you to submit to TX jurisdiction especially since you are functioning ProSe' (they especially dislike that ... I did the same on some matters).

IF I were you, I would find a couple of experienced UCCJA/PKPA NY attorneys and get some legal opinions and if their is a quick remedy by writing a letter then you may want to consider.  Just familiarize yourself with the UCCJA an d PKPA so you don't get hood winked and get thrown into jurisdictional court arguments.  I definitely would not enter a foreign (out of state) proceeding prose'.   Please keep us posted.  Many others may want to better understand your entire experience.

[MixedBag]

Davy -- are you saying that he shouldn't even file a motion to dismiss in TX stating that NY has jurisdiction?

So what happens if the TX court simply proceeds -- maybe even gives a default answer in favor of the mother because dad didn't answer?

[Im-a-dad2]

Like Davy said - DO NOT FILE ANYTHING IN (or answer anything from) TEXAS!!!

If you do, you will be submitting to their jurisdiction, which would obviously suck for you.

I JUST went through this myself. My ex and I got a custody order in state "A". My ex and child moved to state "B", and I stayed in state "A", the home state.

I recently filed new motions in state "A", and my ex tried to tell me I had to go to her state to file, since she and my child live there now. That is a big NO!!

If there is an existing order in one state, then that state forever has jurisdiction, unless both parents move from that home state, or BOTH parents agree to a change in jurisdiction.

[MixedBag]

I hear what you're saying -- but that doesn't answer my question.

Maybe the answer is to ask the NY Court to call the TX court....yes, phone calls have and do happen between judges.

[Davy]

MB, according to his post, NYPARENT is being requested by letter ... not even a legal notice ... from a TX attorney to request (within 20 days) a hearing to contest the validity or enforcement of the NY court order in TX.  It does not make a lick of common sense for the NY parent contest anything in TX and by doing so could be construed as submitting to TX jurisdiction.  Believe me, the TX attorney is looking for the slightest excuse to throw this matter into jurisdiction litigation in TX.  TX has zero jurisdiction over the NYParent while NY has jurisdiction over all parties.

The bottom line, TX CANNOT modify the NY court order and the mother has to return/respond to the NY court COURT ORDER.  I can almost guarantee the TX attorney would not be sending these letters if NYPARENT was represnted by legal counsel.  The TX attorney, an officer of the court, is borderline jeorpardizing their right to practice law and proceeding in a TX legal action may do just it. 

The UCCJA is part of a national Uniformed Standards act and one of the stated purposes was to prevent subsequent costly re-litigation.  These legal statues remove status quo and discretion commonly present in family court.

.

[MixedBag]

Davy, I totally agree with you regarding jurisdiction stuff.

I guess "served with a citation" needs to be explained because as I understood the first post, court action was filed in TX.

You know -- us common folks trying to decipher all this stuff in an effort to help more common folks.

Thanks!

[Davy]

MB ... I'm just a common ordinary person as well but I think NYParent realizes that TX has absolutely no jurisdiction over him or his children and the case has been settled in NY. 

When I was involved in jurisdictional litigation my attorney advised against being in the foreign state (ie like to see the kids) because they were fearful that even a traffic violation would give rise to further extraneous litigation.  Ant they all advised that I would be "walking on eggshells" just going there to VISIT the kids and highly recomended I just FORGET the kids.

After 3.5 months (ex was only there for approx 10 days and had left the venue) of litigation the judge issued his findings : "he agreed that IL was without any jurisdiction over any of the parties but would not release the case until the father filed for divorce in TX" .  She had already filed in another IL jurisdiction (her hometown) the day before. IT REALLY GOT MESSY AFTER THAT.  She was named CP in IL and I was NCP.  She was NCP in TX and I was first ever CP in TX with court-ordered visitation.

[NYParent]

For clarification purposes I should state that the letter I received came from the clerk's office at the court by registered mail.  I was also served with a citation from the court for the modification (which I have no intentions of going to TX for).  Luckily my court date here in NY is before and the clerk in NY told me that it was very likely that the judge here in NY would communicate with he judge in TX as a form of professional courtesy to let them know that NY is handling the case.

What others have said about not responding to TX makes sense.  I guess from a legal standpoint they can make whatever orders and modifications that they want, at the end of the day they don't have jurisdiction and therefore they will not be valid.

My only concern now is the registration of the foreign (out of state) order.  Simply because I supposedly have a deadline of 20 days.  I have contacted several attorneys here in NY, so I am waiting to see what I hear from them regarding this specific matter.  I'll see what they say.

I meet with a former family law judge (a friend of a friend) who told me that for the most part courts don't like to give up jurisdiction.  That made me feel better.  Plus this person said it was guaranteed that the judge here in NY could see through my ex's intentions (especially because she tried to get Sole Custody to begin with and the judge told her no way).  So I will make sure to have a copy of the citation the ex served me with me on the day I go back to court.

[Davy]

Good moves.

The NY judge "professionsl courtesy" will be the most effective of all options.

Just for CYA.  I would enter a "Notice to the Court" to your clerk to legally make it part of the case ....and attach a copy of the TX citation along with a statement that you refuse to submit to TX jurisdiction.  Also take a copy to court as you planned.

The regristration of foreign orders is a legal requirement I think under the statues having to do with national Uniformed Acts.   Please share what your attorneys say because it comes up quite often on Sparc.  And ...thanks in advance. 

[MixedBag]

yes, thanks for coming back and adding and stuff.

And PLEASE come back and share your experience and the outcome of all of this.

[NYParent]

I will certainly keep everyone updated.  If anyone can think of any other suggestions, I would love to hear them.  I feel like you can never be too prepared when going to court (especially when dealing with another parent who is constantly lying).

Thanks a million.

[NYParent]

I did want to know, what sort of system do you guys use to track your parenting time.  I want something that will be easy to show in court.  Right now I am using a simple calendar, but I guess I wanted to have something that will help me clearly demonstrate to the judge that there's been a decline and that I am not getting enough parenting time.

[Kitty C.]

Right here above this post is a tool bar for Optimal, a time tracking system that can be used specifically for custody issues.  I believe there is a fee for that service.  There is also parentingtime.net.  I believe both programs have an application that you can print off to take to court that is easy to interpret and I've heard that it is accepted favorably.  I have not personally had to use it, but I have heard of others who have.

[NYParent]

Another questions, when documenting infringements on the custody order in part of my ex, is there any better way to do it than simply documenting every detail?  Meaning is there a way to officially document with the court without filing contempt?

[MixedBag]

let me try to answer.

I have about 5 or 6 boxes of documentation in my attic.

99% of it is from "independent sources" meaning "I" didn't write it, but it has been gathered from other places.

For example of what NOT do to.....but IMHO it's rather a lame attempt.

When there's an exchange that is supposed to take place, and one party wants to prove they were there ON TIME, go to the nearest convenience store and buy a pack of gum at the closest time that you can to the exchange time.  Don't drive 1/2 hour away and THEN buy a pack of gum because that only proves you were on the road -- and not necessarily AT the exchange place.

Having the right documentation to support your claim that the EX violated the order really depends on what you're trying to prove.  Do your best to keep it organized so that when it does come time to find it again, you can.  There are days where I know I got a piece of paper to prove my claim and then bingo -- can't find it -- but boingo, it materializes about an hour later.

There are many subjects where an EX usually violates an order and personally, I filter the violations through three thoughts:

1.  Does it meet the criteria that Socrateaser put out there years ago -- (go search on that section for "three elements of contempt and READ that stuff)?  Because if it doesn't, I'm not gonna prevail in court.

2.  Is there ANOTHER way to fix whatever the other parent did?  (like contacting the doctor, school, banking commission, other regulating agency)

3.  Did he mess with our son's time with me? -- and every time he did (or EX#3's EX did with his kids), I filed for make-up time.

BTW -- NYP -- just so you know -- my EX#2 READS, PRINTS, and FILES whatever I say on these boards -- there go some more trees!