CP is deploying to Iraq

[karynmb123]

Hello, my ex and I are in the middle of a custody dispute. We are up for appeal in Dec. As it stands he is the primary and we have joint legal.

However he is the NG and has been activated for deployment to Iraq. When he left he left our daughter in his parents care. We are in Virginia by the way. What I want to know is there an automatic assumption of custody on my behalf because he is gone. I want my daughter with me not his parents. However they will be ready for a fight and can certainly afford it much more than I can.

I need to know what my rights are as her other legal guardian and natural mother.

Any help would be great!

Thanks.

-K

[socrateaser]

I cannot give you entirely accurate advice without reading the EXACT text of the court order re custody. However, assuming the facts in your post are the only ones that are relevant, the child's father has the authority to delegate his parents to care for the child in the father's absence, during any time that the father is awarded custody.

You also, retain the same rights as you had prior to deployment, and one of those rights is the right to file a motion for a new custody hearing and for temporary sole physical custody, based on a substantial change in circumstances affecting the child's best interests. Your grounds are that the primary caretaker is not able to exercise custody, and that is all the grounds that you need.

As a tactic, I would try to go to court, with the child, i.e., during a period when you are actually exercising physical custody over the child, and if the child and you are on good terms, and if he wants to live with you, then I would bring the child into court with you, because it will show the judge that there is little likelihood of physical/emotional danger to the child, as the result of a favorable ruling to you. However, if this cannot happen by the end of the week, then I wouldn't wait. You can, of course, if you are on good terms with the child and his school, just go to the school, take him out of class, and head for the courthouse. If you lose your motion, then just take him back to the school before the end of the day, or back to the grandparents' home.

Caveat: If the child is old enough to competently testify such that the court will give substantial weight to his wishes regarding who he resides with during his father's absence, and the child doesn't want to reside with you, then you are probably wasting your time and money. But, I don't know the child's age or disposition, so I can't comment rationally on this issue.

Assuming that he child does wish to live with you, then, I would file the motion "ex-parte," and I would support it with an affidavit from you and one from the child, stating, that unless the motion is granted, that the child will suffer the irreparable harm of not being cared for by the person most concerned for his welfare, and that you will suffer irreparable harm to your fundamental constitutional right to the care and custody of your minor child, by permitting a third party to exercise primary custody in preference to you.

The Soldiers and Sailors Relief Act will interfere with your ability to obtain a permanent change in custody until the father can appear and defend, however, it will not prevent you from obtaining a temporary order that will last until the father's return -- at which time, your case for maintaining primary custody will have improved enormously, as the status quo will have changed and the child will be used to the new arrangement.

Do not wait to act. Every day that passes, gives the grandparents greater standing to oppose your motion, because it will appear that you don't care if they exercise primary custody, and because they will have established a new status quo for the child, and courts are extremely reluctant to change custody orders when the child appears comfortable in his environment.

[karynmb123]

Thank you so much for your advice. I am following it and going to file a motion today. However, I have learned that the court won't hear the case today, it will be scheduled for a later date. This is in Virginia courts, by the way. Also, my child is 6yo.

So with those things in mind...

1) Do I go pick up my child and keep her with me until the hearing, or do I return her to the GPs and wait for the court to decide.

2) If I do keep her, will the judge look at this unfavorably?

I am so unsure of the best plan of action here and any help would be appreciated.


Thanks again,

-K

[socrateaser]

>1) Do I go pick up my child and keep her with me until the
>hearing, or do I return her to the GPs and wait for the court
>to decide.

I just read your posts on the custody board. I can see why you're confused. You also didn't mention that the grandparents had a power of attorney -- Not that the document by itself has any power over the court, but it does evidence the custodial parent's wishes regarding his custodial rights.

I cannot give you a specific answer about whether you can keep the child unless I read the EXACT text of your custody orders. Also, you didn't mention that this case is operating across state lines, so, which state made the last custody orders -- NJ or VA?

On the issue of how soon for a hearing, you can get an "Ex Parte Motion for Order to Show Cause emergency hearing" (OSC hearing), and you can get it in VA, regardless of whether or not NJ has jurisdiction. In fact, it probably would be better if NJ had jurisdiction, because the VA court wouldn't know the exact situation, and may just grant you emergency temporary custody. Generally, every court has provisions for IMMEDIATELY hearing cases with only one party present, on grounds that if relief is not granted, that the requestor or party in interest (your child) will suffer irreparable harm. You have grounds, which I already gave you, showing irreparable harm, so don't allow some court clerk or some attorney will no b**** to convince you otherwise. If you file a standard motion for relief, you will wait in line forever, and every day that the child is with the grandparents, lowers your chances of obtaining primary custody in the other parent's absence.

If you want more help from me, you need to post your custody orders here, and you better hurry, cause after today, I'm gone until December.

[karynmb123]

Thanks for responding so fast.

As far as my CO, it reads:

"This is a final order. That joint legal custody of child be vested in Mother and Father with primary physical custody of the child be with father and visitation with the mother everyother weekend from Friday at 6pm to Sunday at 6pm."

The rest of it just talks about telephone and holiday visits. Nowhere in this order is it stated about Right of First Refusal, which I thought was standard.

Also, this is the order that I have since appealled. Just to ley you know waht I have been up to. I went to the circuit court yesterday to look at our file and also to make copies of the CPs military orders which state he will be gone for 545 days. While there I asked if I could file a emergency motion to amend custody, the woman said that that is not done in circuit court, that I should have my lawyer handle it. Well I have been trying to get in touch with my lawyer all week and he has yet to call me back.  

So as a last resort I contacted Legal Aid and was assigned an atty through them. She told me to go to the JDR court and file this motion, (she also told me to get my child after I filed this and to keep her until the court hearing) which I did today. I was told the fastest I could get before the judge was Nov. 18th because next Thursday is a legal holiday.
So I left the JDR court feeling that at least something had been started.

Well within just a few hours I got a call from the clerk at JDR saying that I needed to come withdrawl my motion because they do not have Jurisdiction, that I need to file it at Circuit court. Which brought me back to how do I do this, no one has been able to help. The new atty. is away and wont return until Monday.

So I called the judges legal asst. (who if you recall, set up a conf. call with my atty., my ex's atty and the judge to try to solve this before my ex left, but the judge was told the ex was in fact not leaving so he wouldn't make a decision). She told me to have this legal aid atty to call and arrange a conf. call for Tuesday morning and the judge will hear both sides and make a decision.  

So that is where I stand right now. And I see no other option but to pick up my daughter for my regular visitation tonight and return her to the GPs until I can talk with my new atty. Monday morning. And I can hope and pray that this will be resolved with this conference call.

Just to clarify my ex and I are both residents in VA. He is in NJ only as part of his deployment, he is there for training berfore leaving for Iraq.

As far as withdrawling my motion today, I am not going to do that until I can talk with my atty.  I have misgivings about this because the clerk of the JDR court is friends with the ex. So I won't withdrawl until I hear from my atty and learn that this is normal.

Have I mentioned that I hate small towns!!!!! How I wish this were all taking place in the city where there is a bit of anonimity involved.

I hope I have provided enough information here. Again thanks so much for all of your help.

-K  

[socrateaser]

Well, it sounds like you have a plan. If your ex still has an attorney of record, then he has a duty to appear and defend, even if he has no more retainer money. Frankly, I've never heard of a judge holding a temporary custody hearing without a pleading filed -- this is some serious "rural" justice going on here!

It's gonna come down to whether or not you can keep the kid in the same school district and with the same friends and schedule, better than the grandparents can. Basically, whoever lives physically closer to where your ex lived will probably win this one, assuming that the child is equally comfortable in both households.

I say this, even though, if I were judge, I would rule in favor of your fundamental constitutional right to custody in the absence of the other parent. Most sitting judges, however, will ignore your civil rights every time in favor of what they view as the child's best interests, even when that standard is no longer the measuring stick to be used to make a custody determination.

FYI, the "best interests" standard is intended to break the tie that exists between parents who dispute in issue concerning a child's welfare. When only one parent is available, the best interest standard should not prevail over the remaining parent's constitutional rights. This was the exact ruling made by the federal court in the case of the child, Illian Gonzales, when the court sent him back to Cuba with his father.

Interestingly enough, however, Illian's father actually had no fundamental constitutional right to custody in that case, because he was not a U.S. citizen. So, it was a bad ruling -- just shows how difficult the law can be to interpret.

You might want to have your your legal aid attorney read my little discourse above, because I'm fairly certain he/she will not clearly understand the minute details of "best interests" doctrine. Unfortunately, neither with the family court judge, so, it will all come down to what the judge has for breakfast that morning. All I can say is...

Good luck.

[karynmb123]

LOL well lets hope his wife fixes a wonderful breakfast and impresses upon him how wonderful woman and mothers are.

Thanks for all your time and advice, I will share these posts with the atty., hopefully it will help.

Rural justice is right, the Good Old Boys Club is how we refer to it, and unfortunately the ex and his fathers are members of this club.

Well keep your fingers crossed!! I will. Just a note, the ex, me and the GPs all live within a few miles of eachother so I hope that won't be a concern. But you just never know.

Have a great vacation!!!

-K

[blank1]

I don't know anything about Virgina law.
What I do know is the situation my dh is in and another very similar case that was just released from our state (IA) appealate court.
My dh is USAR - and was deployed. He knew that he would go eventually and since it would be another year of active duty - he went AGR (full time) before he deployed. He tired to get his company but they filled the position so we were transferred out of state and had a hearing regarding the move away issue. Since it was all addressed in the order that gave him custody (BM lived in another state when dh was given custody during modification proceedings) - we were allowed to move. DH got deployed about 2 months after we moved here (we didnt think he would be deployed so soon). His ex atttempted to file for modification but was unable to serve dh (duh- he was overseas) so it didn't really go anywhere and with her other issues- she hasn't followed through it.
When this case came down- we were happy with it because it lets my ss remain with me during his dad's absences. In our case it's a really good thing as there is substantiaed alcohol and drug abuse on bm's part. She was even arrested for drunk driving and assulting a police officer after trying to pick ss up for visitation (dh refused since she was obviously intoxicated). She has also left ss with a registered sex offender as a babysitter. Her current husband was just released from jail yet again for drug and theft charges...I could go on but I think people get the point.

Anyway- the IA appealate court just handed down a decision regarding similar c ircumstances that reversed the district courts ruling denying a stay under SSCRA (nka SCRA) and reversing custody- both temp and perm.) that was changed during and because of a deployment. It also cites the only other case I could find that was similar. YOu can do a search for that one on google, versuslaw, ect. It's a KS case In re Marriage of Rayman. The IA case can be found at http://www.judicial.state.ia.us/appeals/opinions/20041115/03-2100.asp

[dipper]

I just wanted to ask as a legal aid lawyer was mentioned.  Do you have help through legal aid?

We are in Virginia as well.  My husband and his ex shared joint legal -with her primary physical.  Up until June, my husband saw his son Th-Sun every week, and sometimes more - never less.  (we got married in July)  The ex moved the son two hours away - she had a lawyer, he could not afford one.

We have looked into legal aid.  We qualified, but they said that because no one was trying to take custody AWAY from him, they could not help.  Most people who get custody are women, so I think its prejudice.

Anyway, just wandered - did you have a legal aid lawyer from the beginning or is this since your ex was deployed.  By the way, I have a cousin who was recently sent to NJ in preparation for Iraq.....and I live in a very small town as well....

[karynmb123]

The legal aid atty is a new one. I don't know why they wouldn't help your husband. Did your husband file for custody and lose?

And I understand what you say about the system being prejudiced against men, but this is not the case in my situation, in fact just the opposite, as I personally know 4 woman in this little town who do not have custody of their children. So in my experience, I cannot really agree with that statement. But understand that in general, more women get custody than do men. But also, up until recent years, more women have asked for custody than have men. I read a statistic once, when I first lost custody, that in VA, in cases where both parents are fit and able to provide, of the men who actually petition for full custody get it 67% of the time. I can't I can prove that as accurate or not I just thought it interesting and it certainly seemed to ring true to me as I had just lost custody myself.

Anyway, I guess I wasn't much help to you in your situation as I can't understand why if you qualified, they didn't help you. I don't know if it is different in different parts of the state or what. Sorry.