Help Please!!

[dipper]

My fiance was to go to court this coming Tuesday, June 1st to try to get sole custody of his son.  His son's mother is moving over two hours away to a very high population, high crime town.   The child is over 12 and does not want to go.  His dad, brother, and all of his dad's family is here..and he is very close with his cousins.  The child has AD/HD.

Anyway...then my fiance got a notice today that the date has been rescheduled to June 29 - her lawyer had a conflict.  Excuse me.....they have joint custody and he has had to pay child support even though he has full custody of the oldest child!  Yet, she is able to pay for a lawyer.  yeah....she was in an accident a couple of years back and stashed a few thousand away.  Never does anything with the child.

Oh..and the new trial date....same week we are getting married...which I think is the reason there is a move to begin with!!

And - my fiance cannot afford an attorney.  Is there any way we can file an emergency injunction for temporary emergency custody of the child?  Or...is there anyway we can summons the child so that she has to bring him back for the trial?

Any advice will be welcome!!!!

[speciallady]

hmmm.....scheduling of a trial more than likely was dictated by court schedule, however, I have seen in court where the judge throws out a few dates and then counsel and judge comes to an agreement....
What state are you in?
Why do you want the child involved in this trial, ie, "summons the child so that she has to bring him back for the trial"?
I dont believe she can move with a trial pending, but thats my layperson understanding......
I'd at least consult with an attorney to see what your options are...
good luck~

[dipper]

Thank you for your response.  The trial date was set for the 1st of June.  My fiance just got his notice today in the mail that it has been changed to the 29th.  The notice stated that her lawyer had scheduling conflicts.  And gets a month extension.

I will be checking to see if she can move before that.  They are joint custody, but she does have legal custody or physical...or both.  I am not sure.  

We were wondering about having the child returned for the trial because....he doesnt want to go.  But, if he is forced and is down there for over two weeks, all we will have is her word on how he feels about it.......

[speciallady]

I'm still thinking that with a custody trial pending, she cannot move the child......
try Socrateaser board on here...he should be able to answer :)

[gipsy]

I Ask the same question as the above post, what does the child have to come back for trial for , Are you thinking the child will talk to the judge ? That MAY be true . But usually there is a guardian ad litem appointed , And the child talks to the Gaurdian ad Litem and  this will be shown to the judge . I would ask Your atty and get to the point with the atty . There is a lot of BS in all of this and I have posted numerous times , My atty showed Me the legal criteria for change  of custody , When You go talk to Your atty Insist that He show you this in the law ,  And write down the legal chapter and code etc , And go Home and ask your self what You think , If the child shows a good reason to live with you , Like he will be going to the same school ,same friends , be on the team with old friends , that [according to My atty is good reasons ] If He say's He wants to live with Dad and Dad lets him stay up late and eat ice cream . Then ; ( According] To My atty thats not really a good reaSON  for a change . My atty explains it fairly simply and again , He told be where it was in the law . Or where it is written  that the judge makes decisons . or considerations , Based on what

[KAT]

Yes, IMMEDIATELY send out a supenoa to the mother for the child. Since you haven't already done this, her lawyer did you a favor by giving you more time to do so. If she doesn't bring him ask that she be held in contempt & custody AND SUPPORT (MAKE SURE YOU INCLUDE SUPPORT, judge could possibly not rule on that aspect if it's not before him/her) immediately changed. Just because there is a supenoa, doesn't mean the child has to be questioned. If she does indeed move before court she lowers her chances of retaining custody greatly.
Let us know how it turns out!
KAT

[grazer]

I agree with a lot of what others have already told you. With most states laws being a little different and with procedures of court being a little different per individual states, I would strongly suggest obtaining a attorney's advice on correct procedure and laws. Also, as I always advised, I would never enter into a court/custody battle with the opposing party having legal/attorney hired and you not having an attorney. Unless you have very good knowledge of law and how your state's court procedures work. You can represent yourself with the opposing party having an attorney and it can be done with sucess, but ONLY if you feel completely cofident in your knowledge of law/procedures. If you can not afford attorney or attorney's retainer fee, I would attempt to either borrow the money or find an attorney that will allow monthly payments(they are out there/just hard to find).

With all the above said, in my state, when a child wishes to change custody and the NCP parent seeks to obtain full physical custody, the judges in this state requires the child to come before the judge (usually in judge's office/chambers) and the judge personally interviews the child with only the child's parents attorneys present. The parent's attorneys are required to keep quite and usually are not allowed to question the child. The attorneys are present during the judge's interview process only as witness. What the judge is seeking during the interview, is whether the child is mature enough, the child has not be brainwashed, the child has not been promised a new bike/tv/stero or other types of material bribes. The judge also is seeking to see the reason for the child's wishes to change custody. These reasons need to be very valid reasons, the reasons can not be that the child doesn't like it's current custodial parent or the child likes the freedom it can recieve by moving the NCP home or the child will be able to miss school whenever it wishes/ect. ect.! (in my case my children's wishes were very valid, son wanted badly to have solid/quality/continual rehab therapies that his mother had not been providing or not providing regularly(son is paralized right side from a stroke))

Also, in this state, it is not required but is found helpful, that the child sign a statement/letter that states the child's wishes and reasons for it's wish to change custody. This statement in my case was prepared by my attorney and my attorney signed the statement and stated that the attorney had interviewed the child and the attorney had not attempted to force or coax the child to sign, that the child was signing the letter per it's own reason and the letter reflected the true wishes of the child. In my state the youngest age for this to be done and the judge rely soley or almost soley on the wishes of the child, is age 14yrs. Children under this age can do the above, but the judge is required to ONLY use the child's wishes as a factor in the custody change.

Also, in my state, you could file a temporary restraining order against the child's mother and keep the mother and child to remain in same location. You could file this restraining order on the grounds that you believe that the mother will attempt to keep child away from you and not make the child available to you for the pending court hearing and also not bring the child to the court hearing. Also that the child should remain in it's present location because the reason of having to be moved and then if granted custody to the NCP, forced to yet move again (some judge's don't like seeing children moved so much) I have seen some judge's grant this TRO without much trouble, other judge's I have seen will not grant this without very solid factual proof of the reasons for the TRO. If the child's mother has already shown that she will hender your acess and will play games with child, the judge will grant this TRO. Remember the judge's view (or at least in theory) "what's in the best interest of the child."

Delaying court dates is item used by sleeze bag attorney's to win their cases by allowing things to occur that will help them win their case. In your case, the mother's attorney is requesting a delay, to allow the mother to move away and set up home life in new location and then the mother come to court and state how good the new home life is at new location and how well the child has adjusted to it's new home. Your job to contridict this, is to show to the court that the child's new home is away from it's extended family and away from the child's bio father and that the distance moved will only alienate the child from it's father and extended family.

Feel lucky that the court delay only was for one month, in my case, each time my ex's attorney requested delays, it took minuim of 3months to aquire new court date(happened in one of my trials 3xtimes). If you feel that the mother's attorney will again request yet another delay with your current June 29th court date, you can thwart/stop the delays. YOu can go to the court and obtain several court dates that are available, then go to the mother's attorney's office and have the attorney sign a statement that it is agreeing to the court date. Then when the court date comes up, and the attorney wishes to play games and request further delays, you can go to the judge and show the judge the signed statement by the attorney and judge will legally not allow the delay.

Good luck,
Grazer