travel expenses... and just problems

[MISHELLE]

soc,
 
 my daughters mother moved to Orlando florida ( I am in CA) without my permission, it took me 3 years to find her, now I have had child every summer.The past 2 summers I have paid for tickets for her to come to california and mother has paid for tickets to go back to Orlando.

Now this summer I have not spoken to mother except once (which was today)and she told me she is not paying for her return ticket, that its my responsibility to see her not hers and I am to pay for her ticket and she wants her home beginning of  next week.

I cannot afford the 7-900 that tickets are and since we had always split the cost  I am unsure how to respond to her. She also said that if I dont pay for her return I will not have her again.
We have no custody order and she could just keep her and not let her come back.
 1.) how do I respond?
2.) Can she just decide not to pay for what we agreed shed pay for, and stick me with it at the last minute.
3.) If I dont "meet her demands" and our daughter stays here can I get into any trouble? (there is no custody order)
any advice would  be appreciated
thanks

[socrateaser]

> 1.) how do I respond?

You have no custody order?
What is the exact legal status between the two of you? Are you never marrieds, etc.? Was there ever a judgment of paternity?

I need more info about your circumstances.

[MISHELLE]

we were never married, I am on birth certificate and pay child support and paternity was established.

[MISHELLE]

also, there is  no legal status in terms of custody and visitation, just child support.

[socrateaser]

>also, there is  no legal status in terms of custody and
>visitation, just child support.

Well, that's about the weirdest thing I've ever heard of. Was support stipulated (agreed to), or was it ordered by the judge or by CSE? And if it WAS ordered, then how did the court determine the guideline amount without making some sort of custody order?

And, where were these orders made?

Point is, that if there really is NOTHING in your order regarding support, and the orders were made in CA, then I would ask the child where she would like to live, and if she says, CA, then I would file a motion in CA for custody, like today.

[MISHELLE]

thanks soc, when cs was determined mother lived in CA and was on welfare. therefore Orange county cA went off ability to earn, and was ordered by court. but no custody order was ever done.  child wants to live here with us.. we have had her since may 25th.

thanks for advice

[socrateaser]

I accidently said "nothing in your order regarding support..." where I should have said "nothing in your order regarding custody..." in my prior message. I think you know what I mean, anyway.

[MISHELLE]

soc,
 well bm called tonight, screaming and yelling that she is not responsible for paying any travel expenses cause shes broke. (even though they split costs last 2 years)  Mother has said she is going to call police and have him arrested for child abduction, and he doesnt pay her enough money anyways.  she also said when she gets child back shes not coming back to CA.

1) if she calls police, wont they tell her it is a custody dispute and handle it through courts.
2) which court has jurisdiction? Ca or FL?? child was born in CA, child supprt order is in CA (she never changed it to fl when she moved there,she asked them to keep jurisdiction) but bm has lived there for 4 years. I just want to make sure all my t's are crossed and i's are dotted.
3.) does the Uniform Child Custody Jurisdiction and Enforcement Act  apply? (she has only been in CA for 3 months, it says 6 is required for the title of  home state)
4.) Or does that not apply because there is no order, and she left CA with the intention of not allowing visitation and custody.
thanks

[socrateaser]

>1) if she calls police, wont they tell her it is a custody
>dispute and handle it through courts.

The police will attempt to enforce the existing order. If there is no existing order, then the police will have nothing to enforce. But, watch out for "in your ear." Never know how the government will react to a screaming parent.

>2) which court has jurisdiction? Ca or FL?? child was born in
>CA, child supprt order is in CA (she never changed it to fl
>when she moved there,she asked them to keep jurisdiction) but
>bm has lived there for 4 years. I just want to make sure all
>my t's are crossed and i's are dotted.

Well, technically FL has jurisdiction under CA law, because the child has only been in CA for 3 months, not 6.

>3.) does the Uniform Child Custody Jurisdiction and
>Enforcement Act  apply? (she has only been in CA for 3 months,
>it says 6 is required for the title of  home state)

Yes, it completely applies. But so does this:

3424.  (a) A court of this state has temporary emergency
jurisdiction if the child is present in this state and the child has
been abandoned or it is necessary in an emergency to protect the
child because the child, or a sibling or parent of the child, is
subjected to, or threatened with, mistreatment or abuse.

Your facts state that the mother called screaming and ranting and complaning. Is it possible that you or the child have been threatened with mistreatment or abuse. Or, perhaps the child fears her mother, which is why she wishes to remain in the jurisdiction. If so, then that would give you authority to request a temporary emergency custody order.

I don't know all of the relevant facts, but I think, that if the child really wants to stay with you, that you will have no trouble getting an emergency order.

You will definitely need an attorney to pull this off.

[MISHELLE]

soc,, so i spoke with Orange county district attorney office today, among a few others (that is where current support order is) they informed me that the  Uniform Child Custody Jurisdiction and
>Enforcement Act does not apply because the mother has conceded to and requested that CA handle all CS orders therefore she conceded to CA law.
she has not threatened physical harm to my fiance, however she has told him he will not see her again. and I noticed in the CA code that that is grounds for him to file here.

any thoughts?
thanks

[socrateaser]

>soc,, so i spoke with Orange county district attorney office
>today, among a few others (that is where current support order
>is) they informed me that the  Uniform Child Custody
>Jurisdiction and
>>Enforcement Act does not apply because the mother has
>conceded to and requested that CA handle all CS orders
>therefore she conceded to CA law.
>she has not threatened physical harm to my fiance, however she
>has told him he will not see her again. and I noticed in the
>CA code that that is grounds for him to file here.

I disagree with the DA's interpretation. The UCCJEA is the EXCLUSIVE source of jurisdiction over custody matters in CA. CFC Section 3421(b) states that 3421(a) is the EXCLUSIVE authority for jurisdiction of a CA court over custody matters. Therefore, all other contrary statutes are void, unless they expressly overrule 3421(b).

But, it's irrelevant. Bottom line is that you should be filing for custody, emergency, permanent, or otherwise, and then it will be up to the mother, who's broke by her own admission, to fight back. And, how, without any money is she going to fight back. Answer: SHE AIN"T!

Have a bitchen summer (this was written all over my HS Yearbook...I think it's quite applicable to your circumstances)!

[MISHELLE]

thanks ;-0

[MISHELLE]

Soc,
    well I spoke with my attorney yesterday and he said that ca does not have jurisdiction so we would loose and that we should just allow child to go to fl with mom and try to work things out amicibly, because just her threatening to keep her from me is not reason enough for an emergency order. (even though she has done it before and it took 3 years to find her?)
   I also received a voicemail from bms mother who is also in CA and she said she is driving up to where I am to get my daughter. Cant she get into trouble if she shows up at my door trying to take my child?
   Also bm said that she is going to the courts on monday in fl to ask for an order to have me put child on plane back to fl.  
 
   1.) are there any codes in ca that can protect me on this jurisdiction issue, ?
2)would a fl court make me return her to fl if there has never been any determination of custody and bm has willfully kept daughter from me in the past. ?
    3.) I have offered to come to a written stipulation with mother .. she told me to take a hike, can i handle this pro se? or what do you think I should do??
4) feel like telling me where you practice so I  can  hire you?

[socrateaser]

At the moment there is no custody order, so absent a court order, no one can take the child away from you. It's up to a judge, either in FL or CA to hear facts as to where the child has been living for the past 6 months and then issue appropriate orders. Until that happens, you are under no obligation to do anything but protect and love your kid.

It may be that the mother will get a FL court to issue an order to return the child to FL forthwith. Or maybe not. Depends upon the judge.

You have relied on an ongoing verbal agreement that the mother pay the return cost of the chlid's trip. You have further been threatened with extortion, that is, by stating that if you do not pay for the return tickets, that you will never see your child again, the mother is attempting to intimidate you by threat of fear of force to do something that you have no legal obligation to do. That is prima facie evidence of a felony. Call the DA and file a complaint. On this basis alone, you may be able to get a protective order from the CRIMINAL court.

Personally, I think you can get a protective order from the family court, too, on the above facts.

Consider finding a new lawyer, Monday morning.

[MISHELLE]

Soc,
 ok. so I havent been on here in awhile, after the last post the mother told me she would like to come to an amicable agreement to custody/visitation. well i wrote up an agreement faxed it to her and then she told me to take a hike. This was almost 2 weeks ago. today I received a letter via email and it reads:
           
       : Dear Mr....XXXX
 
 Please be advised I represent the interest of your childs mother, XXX XXX. If you have an attorney, please forward this to him or her. It is my understanding that mother has allowed you with your child in California. School begins here on Monday August 9th 2004. If the child has not been returned to her by then, I have advised her that we need to take further action against you. Fortunately for you, your childs mother has only retained me to initiate contact with you via this letter. Should the child not be returned for school in a timely fashion,  I will again recommend to mother that we take all available legal avenues open to us.
 You shoudl contact counsel of your choice to determine what your liabilities are.  Time is of the essence. My client is not waiving any of her legal rights under Florida, Criminal of Civil Laws, and you should govern yourself accordingly!!

Cordiall
    MR. Branson

since I last emailed you for assistance I have found out that my daughters mother allows our daughter to ride a bus to an apartment complex from after school daycare and she is to wait there until someone comes and gets her. my daughter has told me that she has almost gotten in a car with a stranger cause she thought it was her mothers boyfriend.
 her mother acknowledged this was true and that she is doing the best she can.
 my daughter also informed me that her mothers boyfriend smokes weed.
Please remember there is no custody/visitation order here, or in florida only support order in CA

1.)ARe these grounds for emergency custody?
2.) if I file for emergency custody here in Ca and she files in FL which state takes jurisdicition.? (child has been here since may 27)
3.) what should I think of the above letter? scare tactic? he mentioned no specific code or statute so I am not sure what to think of it.
any help would be appreciated

mishelle

[socrateaser]

>1.)ARe these grounds for emergency custody?

Grounds for emergency temporary custody are based on Cal. Fam. Code Section 3424(a)

"A court of this state has temporary emergency
jurisdiction if the child is present in this state and the child has
been abandoned or it is necessary in an emergency to protect the
child because the child, or a sibling or parent of the child, is
subjected to, or threatened with, mistreatment or abuse."

Riding a bus and being invited by a stranger into a car is not the kind of mistreatment that the statute implies. Neither is a third party who smokes marajuana. In any case, you would have difficulty proving any of these facts in court.

Nothing in your present fact pattern changes any of my prior opinions.

>2.) if I file for emergency custody here in Ca and she files
>in FL which state takes jurisdicition.? (child has been here
>since may 27)

CA wins, but, unless you prove sufficient grounds to maintain the order, then eventually the CA and FL courts will communicate and they will come to a decision as to how to proceed, and that could mean that CA will dismiss the emergency order and at that point you would become subject to the FL order.


>3.) what should I think of the above letter? scare tactic? he
>mentioned no specific code or statute so I am not sure what to
>think of it.

It's a scare tactic, but it is possible to get a FL court to issue a bench warrant demanding the return of the child, and that order would be enforceable in CA. However, to get such an order would almost certainly afford you an opportunity to make a legal appearance in FL, via attorney, and try to defend your actions on the child's behalf.

It still boils down to this:

1. If the CHILD is prepared to testify that she is afraid of her mother, or her mother's friends, etc., or that her living environment is dangerous, or that she has suffered some other specific mistreatment or abuse, or if YOU are prepared to testify that the other parent has abandoned the child in CA, because that parent refuses to pay any of the reasonable cost of transportation back to FL, and further, that the mother has threatened that if you do not pay the entire cost of the child's return to FL immediately that she will never permit you to see your child again, THEN you have sufficient facts, in my opinion, to obtain a temporary emergency custody order.

You may not succeed in getting the order, but what do you have to lose except a few bucks.

Let's try this:

Dear Mr. Attorney:

I am in receipt of your letter of ??/??/??, wherein you demand the immediate return of our minor child, CHILDSNAME to FL. Your client, MS. CLIENTSNAME, has threatened me, that unless I pay the entire cost of returning the child to FL, and that unless I pay the entire cost of all future visits to CA, that she will take extra-judicial actions to ensure that I never see my child again.

I consider your client's statements to be mistreatment and abuse under California law sufficient to permit me to obtain an emergency protective custody order. Additionally, the child has informed me, and your client has confirmed to me, that she permits the child to be present with the mother's boyfriend, during sessions when marajuana is consumed.

As I'm certain you are aware, there are presently no custody orders in force concerning this child, so you will be required to obtain a temporary court order granting the mother custody, even though the child is not present in FL, before you can gain any assistance from California law enforcement authorities. In the event that you choose to do this, then I will appear by attorney and present the court with the statement of the child, expressing her fears regarding her living arrangements in Florida, and my fears regarding your client's attempt to extort money from me, and I believe that the FL court will deny you emergency custody.

I would like to resolve this matter amicably and without the intercession of the courts. If you have some suggestion as to how we may accomplish this via a stipulated order, then I await your offer.

If I do not receive a response from you within the next two days, I will assume that you do not wish to resolve the matter without resort to litigation, and I will apply for the emergency order here in California.

Very truly yours,

_______________
YOURNAME

[MISHELLE]

soc,
      oops I scanned through all my prior posts and had forgotten to mention that the mother sent a pre-paid ticket via the mail, however she stated that when child returned I would not have her again, I told the mother that without a signed agreement between her as to who has child when and who pays for what that child would not be on that plane.............. she said she would agree to me having every summer yet when I faxed her the agreement she emailed saying she didnt agree. I did not here from her until after my daughters return date to fl had past. .. therefore I did not put her on that plane..

so does this screw something up for me?    


I was under the impression when reading the florida statutes that they can only order a emergency order to return a child to florida if 1. the mother was unmarried and no paternity was established. and 2. if there is a current court order to enforce.

1) do you know anything about this?
 2) If I file for an order here, she would have to either come here in person or hire an attorney to appear for her correct? or could she have the attorney in fl write a letter to the courts for her?

thanks for your help

[socrateaser]

>soc,
>      oops I scanned through all my prior posts and had
>forgotten to mention that the mother sent a pre-paid ticket
>via the mail

>so does this screw something up for me?    

Well, it sort of destroys your argument, now doesn't it? That's a pretty huge fact to have "forgotten to mention."

Under the circumstances, I no longer believe that you have grounds for temporary custody in CA. I suggest that you retain a FL attorney and petition for custody. If the child wants to stay with you, and she will testify to it, then file your petition before you return her and ask the FL court to grant you temporary custody to maintain the child in CA on that ground alone.