why 6 months of residence is important in determining juridiction

[Im_a_survivor]

Hi Soc,

I'm more on an observer than a participator on this form.  Lately, I've note that there have been many questions about determining jurisidiction of cases.    This issue is really important to our situation.

In January, my DH obtained temp custody of his oldest son because he was having severe problems.  BM and his/her three kids were living in Tx.  Court order and parenting plan were originally ordered in Texas.  

We obtained temp custody of the oldest SS, starting Nov 6th/04, with an agreed upon court order, with little detail included.  BM did not ask for specified visitation time with SS.  She assumed that she could demand it later (which she did).  And oh yea, she didn't even show up to the mediation show prior to the court date.  

So, we got SS out of tx and he has been living with us for over 10 months now.  My SS has some severe psychological and physical issues that we are working to iron out.  We've noted that the second SS is starting to demonstrate the same problems.  We've received early indications that BM and SF do not feel that they can handle the problems with YSS, so it is quite likely that we will get custody of the YSS, when things get out of control.

Our attorney has spoken to us about needing to finalize this temp order for the OSS.  At this point, we aren't so keen about finalizing the court order in TX, because we believe that the courts in our jurisdiction should be responsible since we are all members of the UCCJJEA or whatever it is properly called.  The legal costs, and travel costs, for going to court in TX are really getting to us.  As well, we've been through so much before this, we are pretty tired of the legal problems, and we would like to take a break.  The temp agreement, as it stands now, CAN suffice, if necessary.  

Once we've gotten the OSS back on the right track, we would like to try to get custody of YSS, so we can begin work with him.  Early indications state that BM and her husband agree this will eventualy come too.

However, all of this could be in jeopardy, if BM realizes that after 6 months, she would be required to come to our jurisdiction in order to deal with any court proceedings, she will ABSOLUTELY refuse to let us work with YSS.  

So, our strategy was to try and coast along, until it was time to transfer YSS to our house  Six months after that, we planned to file in our local courts, to make the situations permanent.

Unfortunately, because of the costs involved, we were not able to hire an attorney who is Board specialized.  He doesn't do badly for us, but sometimes, I think that I end up playing a bigger role in the strategizing end, (if that really is a word).  When I brought up the 6 month jurisdiction rule, he said that he had never heard of it.  I found that surprising, but then maybe that's why we are advised to seek out Board certified lawyers.

1.  Can you give me some kind of wording and phrasing, in lawyer talk, that I could send to him, to point this fine gentle in the right direction and to help him understand this jurisidictional question?

2.  If we agreed to proceed with finalizing this agreement in TX courts, would we be establishing a 'permanent' precedent that would require us to resolve all future disputes in Texas?

Got to warn you Soc, I might have further questions down the line; this may only be the beginning!

Thanks for your help

[socrateaser]

>1.  Can you give me some kind of wording and phrasing, in
>lawyer talk, that I could send to him, to point this fine
>gentle in the right direction and to help him understand this
>jurisidictional question?

Under the Uniform Child Custody Jurisdiction and Enforcment Act, a court has authority to modify a final custody if the parent and child has resided within the court's jurisdiction for six or more months (temporary absence, vacation, excluded). Your facts show that you currently have the child living with you in a jurisdiction other than that where the last final order was made (i.e. TX) for more than six months (you neglected to mention in what State the child now resides, but it's largely irrelevant for the purposes of this analysis). This would indicate that a court in your jurisdiction may modify the final order. HOWEVER, you facts also show that you don't currently have a final order -- rather, you have a TEMPORARY order, from TX. Therefore, as long as a final order is only pending in TX, TX retains jurisdiction, no matter how long the child is absent from the TX jurisdiction.

In order to overcome this situation, you must obtain a final order from the TX court, or have the current TX order set aside and your petition/motion to temporarily modify custody dismissed or denied. Immediately thereafter, the court of your jurisdiction can assume jurisdiction on a new petition to modify custody, because the child has been living in the jurisdiction for greater than six months.

So, it doesn're really matter, at the moment, whether or not your attorney has a grip on the interstate custody laws or not, because your case is stuck "deep in the heart of Texas." -- Gene Autry

>2.  If we agreed to proceed with finalizing this agreement in
>TX courts, would we be establishing a 'permanent' precedent
>that would require us to resolve all future disputes in
>Texas?

Nope. Exactly the opposite. What matters is how long the child has lived outside the jurisdiction.
>
>Got to warn you Soc, I might have further questions down the
>line; this may only be the beginning!

Then please read the mandatory forum guideline post above, because I need to you post as if you are the person who has the legal problem, and not that person's significant other.