Jurisdiction/venue change

[bluesman]

Dear Soc,

I live in CA which is also the state of decree for my divorce. To this date and to my knowledge, jurisdiction is still here in CA. I want it to stay that way.

Mom moved with the kids out of state about 1 year ago. She recently tried to have me served, but was unsuccessful. So I know she's trying to do something, but I don't know what.

After her failed attempt to serve me I checked my CA file and nothing new has been filed in the past couple of months.

My fear is that she's trying to have the venue and/or jurisdiction changed to her state.

1) What does she have to show to the court to be successful?
2) What can I do to prevent her from being successful?
3) Is it likely a request like this would be granted?

Thanks!

[socrateaser]

>1) What does she have to show to the court to be successful?

Under California law, you have a legal duty to keep the other parent advised of your contact address. So, if she cannot serve you, then the court of the other state, may decide, that if the documents were delivered to the correct address, then that is "constructive" service "reasonably calculated under all the circumstances," to advise you that a legal action is pending and that you need to appear and defend.

So, I suggest that you stop avoiding service and find out what's what, because you could be shooting yourself in the foot.

>2) What can I do to prevent her from being successful?

I don't know the facts of your case, regarding custody and child support, so I can't comment.

>3) Is it likely a request like this would be granted?

You're a bluesman -- well, start singin!

Bb7...etc.

[bluesman]

Soc,

I'm afraid I wasn't clear enough about her attempt to serve me. She didn't try to serve me in CA. She tried to serve me at my father's house in the other state (IA) when I was visiting my kids recently.

1) Is is true that because Iowa does not have jurisdiction, that she must file any action in CA?

2) Let me rephrase my second question - Generally speaking, would a CA court likely grant a request to move jurisdiction to IA? If you think so, what can I do to possibly persuade the court to not grant such a request.

3) Does your answer to my last question mean you think the court will let me down again?

Thanks

[socrateaser]

>1) Is is true that because Iowa does not have jurisdiction,
>that she must file any action in CA?

If the action is for a modification child support, then as long as you continue to reside in CA, jurisdiction to modify CS remains in CA, unless you and the other parent both file a statement in the CA court that you want some other State to take jurisdiction over the matter of support.

If the action is for a modification of custody, then the CA courts retain jurisdiction until a CA court determines that that neither the child, nor the child and one parent, have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships.

What this means is, that the other parent could ask a CA court to determine whether or not the child's connection to the State of CA is so attentuated that there is no longer any justification for a CA court to control the issue of custody.

You have presented facts that suggest that the child has lived in IA for about 1 year, and that you are visiting the child in IA. This suggests that the child has little remaining connection to CA, which could permit the IA courts to obtain jurisdiction, but the other parent must ask and receive an order declaring this to be true, before she can proceed with a custody action in IA.

She could, however, begin the action in IA, and the IA court could stay that action until such time as an order was obtained from CA court permitting it to continue. Maybe that's what she's trying to do.

>
>2) Let me rephrase my second question - Generally speaking,
>would a CA court likely grant a request to move jurisdiction
>to IA? If you think so, what can I do to possibly persuade the
>court to not grant such a request.

For the purposes of child support, you need do nothing other than continue to live in CA. For custody, you must show that there remains a significant connection between the child and you and CA, that there are other family and friends, and that the child spends enough time in CA such that evidence exists upon which to base a custody decision.


>3) Does your answer to my last question mean you think the
>court will let me down again?

I was unaware that the court has "let you down," and I have no idea of whether it's likely to do so in this new situation. You haven't posted many facts about your case, so it's kinda hard to comment further.

[InTheMiddle]

It is my understanding that you cannot change the state's jursidiction if there is a motion pending in the court the divorce was filed in.

If she is trying to change jursidiction to IA, then she needs to file that in CA court. If the children live in IA, then she can change the jurisdiction to IA court for under $100.

I think you should research IA law and compare it to CA law and see which one is most benificial for you.

Personally, we kept "contempt" charges filed in our state court to keep it from being moved to the state where the children lived. The BM supplied us with enough reasons to keep the contempt charges going.

We eventually won custody, but many times have wondered if it had changed to the children's state, it would have been more convienent to get CPS, police, and witness cooperation.

From what I have read, CA favors the mother.  Check into IA laws, they may be more in your favor.

[socrateaser]

>It is my understanding that you cannot change the state's
>jursidiction if there is a motion pending in the court the
>divorce was filed in.

Correct.

>
>If she is trying to change jursidiction to IA, then she needs
>to file that in CA court. If the children live in IA, then she
>can change the jurisdiction to IA court for under $100.

Correct, however, she could file in IA first and then have the proceedings stayed, while another motion is filed in CA. The IA court won't necessarily dismiss the motion, it could, but that would be a waste of money and time, if the court knows that the parent will just refile again in the near future.

There's no particularly good reason to file in IA first, but people don't always act with the greatest efficiency.

>
>I think you should research IA law and compare it to CA law
>and see which one is most benificial for you.

IA's recent changes in law probably provide more even handed custody results, but in this case, the facts show that the father has already permitted the child to leave CA a year ago. So, unless he plans to move to IA, it's probably not gonna matter much where a custody hearing takes place.

>
>Personally, we kept "contempt" charges filed in our state
>court to keep it from being moved to the state where the
>children lived. The BM supplied us with enough reasons to keep
>the contempt charges going.

If your opponent knew this and could prove it, he/she could have sued you for abuse of legal process (i.e., using the legal process for a purpose other than what was intended). If your actual reason for maintaining the action was to compond the contempt charges, that's one thing, but if your intent was to prevent what would otherwise be a legitimate change of jurisdiction, then you could be successfully sued, and taxed with punitive damages.

And, as you've just admitted that your purpose was to manipulate the system to your opponent's disadvantage, you have just admitted to an intentional tort.

So, be careful what you put out there in writing, especially as advice to others...because, as with the present poster, his circumstances are entirely different than yours, and suggesting your solution could get him into some unexpected hot water.


>From what I have read, CA favors the mother.

CA has a statutory presumption of joint custody. Beyond that, CA courts, as is the same in every other jurisdiction, favor maintaining the status quo, which means that the mother, who is more often the primary caretaker inside an intact marriage, will more often be awarded primary custody.

Please try to restrain yourself from offering anything other than your personal experience on this board. Things are already murky enough just from my[/u] lousy advice ;-). Thanks.

[bluesman]

Soc,

With all due respect, I did not 'permit' my children to be moved to IA. They were moved by their mother against my strongest objections. I spent nearly $90,000 in legal fees, had a custody evaluation that said the children are strongly bonded to both of us and that they should not be away from either of us for long periods of time. The court allowing them to go was the most painful moment of my life.

Also, CA laws may state there is a presumption of joint legal custody but in practice that is far from the truth. CA treats fathers as second class citizens just like many other states do.

[socrateaser]

>Soc,
>
>With all due respect, I did not 'permit' my children to be
>moved to IA. They were moved by their mother against my
>strongest objections. I spent nearly $90,000 in legal fees,
>had a custody evaluation that said the children are strongly
>bonded to both of us and that they should not be away from
>either of us for long periods of time. The court allowing them
>to go was the most painful moment of my life.

My apologies. Your post suggested to me that the mother left on her own and you permitted it. $90,000 in legal fees? You must be very well off.

>Also, CA laws may state there is a presumption of joint legal
>custody but in practice that is far from the truth. CA treats
>fathers as second class citizens just like many other states
>do.

I don't agree with your blanket statement here. The laws are designed to be ridiculously fair, however, when the court is forced to decide on who to give the preference to, the preference goes to maintaining the status quo, because that is what is believed to be in the child(ren)'s best interests, and it is simply an artifact of civilization, that more often than not, the mother is doing most of the day-to-day childrearing. Therefore, the court has no choice but to come down on the mother's side.

BTW, I'm not in favor of this supposedly fair solution, because, as you demonstrate, what seems fair on paper operates most foul in practice -- like a dead fish wrapper!

I don't believe in the "best interests of the child" standard, and I don't think that either parent should be granted more or less than 50% physical custody absent a substantial showing of unfitness to parent.

But, the question remains, and I have asked it hundreds of times here: If everyone believes that these laws are so unjust, then why haven't the people's beliefs influenced the legislative process to change the system?

I'd be interested in knowing anyone's opinion on this, but as for me, the answer is simply, that the people don't really believe that the system is unfair, because if they did, then the system would cbe changed -- and I don't see much change happening.

However, it's worth mentioning, that the recent CA Supreme Court decision In re LaMusga, 32 Ca.4th 1072, has really cut the wind from the sails of custodial parents who think that they have a blank check to move away. To wit:

"As explained below, we conclude that just as a custodial parent does not have to establish that a planned move is "necessary," neither does the non-custodial parent have to establish that a change of custody is "essential" to prevent detriment to the children from the planned move. Rather, the non-custodial parent bears the initial burden of showing that the proposed relocation of the children's residence would cause detriment to the children, requiring a reevaluation of the children's custody. The likely impact of the proposed move on the non-custodial parent's relationship with the children is a relevant factor in determining whether the move would cause detriment to the children and, when considered in light of all of the relevant factors, may be sufficient to justify a change in custody. If the non-custodial parent makes such an initial showing of detriment, the court must perform the delicate and difficult task of determining whether a change in custody is in the best interests of the children.

 
The father in the present case satisfied his initial burden of showing that the mother's planned move would cause detriment to the children, requiring a reevaluation of the children's custody. The superior court properly considered the relevant factors and did not abuse its discretion in deciding that a change in primary custody from the mother to the father would be in the best interests of the children if the mother moves to Ohio."

The point of the above quote is to show (and I can show other opinions on other family law subjects that have faired similarly) that the courts frequently try to do the fair thing, and as soon as they do, the legislature goes and passes a law to change things back to be not so fair (or is it, absolutely fair...whateva).

A few years back, the Supreme Court decided that Barry Bond's ex wife had signed a premarital agreement waiving spousal support, so she was SOL. It wasn't six months before the CA legislature changed the law so that the court has the power to render that sort of agreement unenforceable at the time of divorce, on the grounds that it is unconsionable, which is a code word for BIIIIG difference in the earning capacity of the parties.

So, while Barry's ex is SOL, the next big star's ex will get big bucks, just like it's always been.

People who bag the courts every time there's some injustice done, are usually looking in the wrong place. Reality is that most judges, and most (not all, most) attorneys have a better idea of what's REALLY fair, legally speaking, than does the legislature. But, unless you're looking to live in some sort of Platonic government of the intelligencia (and I'm not), then you're gonna remain stuck with the emotional baloney that the legislatures are always flingin' around. The legislators are quickly moved by the public outrage -- judges usually aren't.

Anyway, that's all for this topic...I'm getting heartburn.


Comments appreciated.

[bluesman]

Thanks, Soc. I figured it was just an unintended, unfortunate choice of words. I wish I were well off but I'm not. That was everything I had and more. I just refuse to let that stop me from fighting for my kids. Unfortunately, my ex and her family have boatloads of money.

I understand that my blanket statement is hard to swallow for some but I've seen so much of it with my own eyes. I won't retry my case here but I maintain that although the language of the law may be fair, the court's are not ruling fairly. Generally, they rule under the presumption that what's best for mom (usually) is best for the kids. Much more recent, objective research shows that kids are better off with both parents. What's fair is treating both parents equally, not making one more important than the other by virtue of their vocation. Sounds like you agree.

Why doesn't it change? Good question. Lack of organization among fathers who are usually on the losing end (along with the kids) of the custody battles is one of the biggest reasons.

Women's groups have huge lobbying efforts in Sacramento every day. They've had Senator Burton in their pocket for years and when you combine him, women's groups lobbyists, and one of the most liberal legislatures in the country you get things like the Burgess decision and bills like SB 730. Fortunately Burton is gone and SB 730 was pulled but they'll be back and we're already working to stop them.

What do California fathers have? One guy in Sacramento sacrificing almost everything he has to help fathers and kids. He lives on almost nothing and is there everyday trying to make a positive change.

I don't think people think what's happening is fair as much as they simply don't know how unfair it is. Unless somone is a father who's been through it or is close to one of those fathers, they usually have no idea.

If I only had a nickle for every person who said to me, "Oh, they'll never let her move. How could they do that to your kids who love you so much?! You don't have anything to worry about." My case has made those people shake their heads in disgust for the system.

As more people learn what's happening, more things will change. LaMusga is a start.

By the time LaMusga came down the judge had already made her decision. I didn't have another $20,000 to file an appeal based on that case only to have it (maybe) remanded so I could pay even more money to argue to the court again.

Thanks for the advice.

[socrateaser]

If your ex is about to start a big fight for more support, you might actually want to consider letting IA have jurisdiction for modification of child support. CA has the 2nd highest support guideline in the country (MA is #1). IA is cheap by comparison. I'm sure that would fry her beans.

But, hey, if the child lives in IA, then why should you be paying support based on the higher cost of living applicable to CA?