Change of jurisdiction after parties stipulated

[joni]

I am a noncustodial father, involved in a change of custody motion based on child abuse of my daughter by her custodial mother.  The judge ordered a custody evaluation in the state of MI on 9/7.  Mom and child live in NY.  I live in IL.  Mom has sole legal and physical custody of 8 year old daugther although I have the right to make routine and emergency decisions while the child is his care and the parties must consult on all major decisions.

The parties entered into an agreement in March 2004 to allow the mom and child to relocate from MI to NY (they temporarily moved in Nov 2003).  In exchange for the relocation, the parties agreed that the state of MI would retain jurisdiction regarding child custody until August 2007.  This was done primarily because the mom had a history of noncompliance with court orders when she lived in MI and tended to be litigious.  Retaining jurisdiction in a "neutral" state would make it equally inconvenient for all involved and in hopes that the parties would focus on coparenting rather than litigation to resolve their issues.

Mom again "allegedly" abused the child on 9/9 leaving her bruised.  I took my daughter to police, ER and DCFS to file reports.  I kept child until court ordered her returned to mom on 9/16 citing that because child recants child abuse allegations when she's in mom's care (imagine that) there's not enough proof that mom may in fact be abusing her (3rd instance of bruising child's back since May 2005) and that the child should remain in mom's "stable" environment until the custody evaluation is completed.

Further, the judge told the parties she would like to see legal arguments for moving the jurisdiction for this child custody trial to New York.

I feel the judge is trying to duck this trial altogether by kicking it to NY.  MI retaining the jurisdiction in this matter until August 2007 was a deal breaker in the mediation as far as allowing the mom and child to move to New York.  I don't think that this was judicially responsible of the judge.  Since our divorce was final in September 2002, we have consistantly been in front of this judge:

Active case, continually in front of this Michigan judge, who is still most familiar with it.  Although none of the parties live in Michigan, based on the court activity, the forum does not appear to be inconvenient for any of the parties based on the activity.

Sep 2002    Divorce final
Dec 2002    Father filed motion to see Alicia for Christmas holiday, I had not seen my daughter for Christmas since 1999
Jun 2003    Mother files motion to move to NY from MI
Aug 2003    Mother's motion to move to NY denied
Oct 2003    Mother allowed to move temporarily to NY
Jan 2004    Parties agree to move with conditions, including keeping the jurisdiction in MI until 8/2007
Mar 2004    Parties sign court order for move with conditions
Mar 2004    One of the above conditions of new agreement, to re-evaluate child support motion is filed
Sep 2004    FOC gives recommendation on support
Oct 2004    Mother disagrees with FOC recommendation, files motion
Feb 2005   Trial in front of judge on child support
Apr 2005    Judge gives opinion on child support reduction
Jul 2005    Judgesigns order for modification of child support
Aug 2005    Judgeorders Illinois court not to hear emergency motion for custody, that Michigan has jurisdiction
Sep 2005   Parties agree to custody evaluation, Judge signs order
Sep 2005   Judge denies motion for temporary custody with noncustodial father


It should also be mentioned on 8/19 that I attempted to retain the child in IL because of abuse on 8/5 by filing for emergency jurisdiction in Illinois because of child being in imminent danger by being returned to the mom.  The MI judge phoned the IL judge and told him that MI was the jurisdiction for all matters in this case and she would hear any motions so IL declined based on this.  I filed in MI on 9/7, temporary custody with me was denied but a custody evaluation in MI was ordered.

The language regarding the jursidiction is as follows on the original court order, allowing the mom to move from Michigan to New York:

RETENTION OF JURISDICTION

It is further ordered and adjudged that this Honorable Court and the parties have agreed that at a minimum the Court shall retain jurisdiction in this matter until such time as the minor child attains the age of ten (10) years or until further order of the Court.  This provision shall apply even in the event that the State of New York becomes "the home state" under UCCJEA.  It is the parties' intent and the Order of this Court that Michigan shall retain exclusive jurisdiction regarding all issues regarding the minor child, including, but not limited to, custody, parenting time, and support issues.  The reason for this retention of jurisdiction provision is because this Judge, her family court worker and the parenting time coordinator are familiar with the parties, the minor child and the facts of this case.

Is it possible that this stipulation can be set aside so easily by the judge?  Is this proper?  How can we defend our motion?

[socrateaser]

>Is it possible that this stipulation can be set aside so
>easily by the judge?  Is this proper?  How can we defend our
>motion?

Your order states the reason for retaining jurisdiction as familiarity with the case. The problem is that the longer the period between actions, the less familiar the court becomes, and the greater justification for dismissing the action in favor of a different jurisdiction. So, you sort of shot yourself in the foot there.

Your best argument is that the parties and the court agreed, and that it will unnecessarily increase the cost of litigation between the parties, while offering no better substantive info regarding the child's best interests in the matter.

You could certainly write a constitutional/jurisdictional argument, but at the end of the day, such arguments would weigh in favor of dismissing the matter, so I don't think that would be useful. Much better to focus on the child's interests and just lay it out that money spent on restarting litigation will be lost by both parents and not available to advance the child's interests.

I think it's really a loser, unfortunately. The court sees a means of walking away from the issue, and if the judge can do it, he/she will, because it makes his/her workload lighter with no loss in income.

I know, it's ridiculous, but just suck it up, because there's not much else you can do. You should weigh the benefits of trying to get a stipulation to change jurisdiction to NY, and try to get something for yourself out of the deal, rather than wasting time with an expensive jurisdictional battle.

PS. In the future, please follow Mandatory Forum Guideline rev 1.2, #10. Thanks.

[joni]

The custodial mother just filed to move the case to New York from Michigan.  In addition to requesting a change of jurisdiction, the mother is requesting that a GAL is appointed for the minor child.  Is this necessary?  The parties already agreed to a custody evaluation with a court ordered psychologist.  Wouldn't this be overkill and create a huge financial burden on myself.  Instead of driving to Michigan for court, now I'll be flying to New York.  A concern of the judge is that the custodial mother has a huge influence over the child, causing the child to recant to the abuse when in the mother's care.  Could not the mother tremendously influence the GAL with myself being so far away?

[socrateaser]

>
>The custodial mother just filed to move the case to New York
>from Michigan.  In addition to requesting a change of
>jurisdiction, the mother is requesting that a GAL is appointed
>for the minor child.  Is this necessary?  The parties already
>agreed to a custody evaluation with a court ordered
>psychologist.  Wouldn't this be overkill and create a huge
>financial burden on myself.  Instead of driving to Michigan
>for court, now I'll be flying to New York.  A concern of the
>judge is that the custodial mother has a huge influence over
>the child, causing the child to recant to the abuse when in
>the mother's care.  Could not the mother tremendously
>influence the GAL with myself being so far away?


The problem is that the evaluator is not in a position to advance the child's separate interests, whereas a GAL is, so I think the judge's view is reasonable (if expensive).

However, if the court has already expressed concern that the child is being manipulated, then my first response would be to move for a temporary change of custody to see if the child stops recanting her story. Surely, the other parent would like to get to the bottom of things, no?

The point is that the court is supposed to look to the child's best interests, and the fastest way to deterimine whether or not the child is better served by a change of custody, where there is a reasonable possibility that the child is being abused, is to place the child with the parent where no abuse has been alleged, to see if the child continues to allege abuse.

I'm trying to trap the judge with his/her own argument here -- it might work.