update.. and a few???

[mishelle2]

OK.. I spoke with the atty here, and I am subing him in just to speak at the hearing, he looked at all the paperwork, and said this is easy (which he said before) he also said, our local court will not allow the response later than Friday as monday is court, as the judge has a huge case load. But I am sure the bm thinks that if she doesnt respond shes not submitting to CA jurisdiction.

[socrateaser]

>OK.. I spoke with the atty here, and I am subing him in just
>to speak at the hearing, he looked at all the paperwork, and
>said this is easy (which he said before) he also said, our
>local court will not allow the response later than Friday as
>monday is court, as the judge has a huge case load. But I am
>sure the bm thinks that if she doesnt respond shes not
>submitting to CA jurisdiction.

Could be that her FL attorney is telling her that they can quash an order from CA in FL. But, I don't see how that can happen, after the FL judge refused jurisdiction, unless the FL attorney thinks he/she can challenge the entire UCCJEA as unconstitutional. My read is that CA already has jurisdiction over the case and the child, because the child was taken from the jurisdiction without your consent.

It's a tough call, and it could get real interesting.

[mishelle2]

well, come to find out, she owes her atty in FL $$$$ so he didnt even show up to the last hearing, he called my atty night before and said, I agree with you, my client doesnt but well agree to voluntary dismissal, then didnt show up for hearing.. soo.. for her to challenge it she'll have to come up with $$$$ ..My atty in Fl used to be state prosecutor, so he knows his stuff, he listed all state statutes in motion to dismiss on uccjea issues, FL and CA so its pretty easy for judges to read and see whats going on.  Heck I even submitted a copy with my OSC here to make the judges job here easy...
I guess we'll see at the hearing Monday,  I will have order prepared in advance and then if shes a no show submit it for signature, serve bm a copy with flight itinerary and if child is not on plane, turn it over to our local unit for parental kidnapping, my atty says they will track her down.


sooo I guess well see
I was thinking of sending bm an email, stating I didnt receive her responsive declaration,(keeping it nice and written out of concern for my visitation for my daughter) she usually sends back nasty emails..

good idea or no?
advice?

[socrateaser]

>sooo I guess well see
>I was thinking of sending bm an email, stating I didnt receive
>her responsive declaration,(keeping it nice and written out of
>concern for my visitation for my daughter) she usually sends
>back nasty emails..
>
>good idea or no?

Waste of time. If you have proof of service of your OSC then you've done all you need to do.


>advice?

Two choices:

1. Ask the judge for an order granting you permanent sole custody and parenting time, and then go to FL and have the local sheriff help you retrieve the child. The judge may not do this, since the Family Code requires that no permanent order for sole custody issue until the court has assured that the other party has had adequate representation, even if it means that the petitioner (that's YOU) must pay for it!

2. Ask the judge to instruct the local district attorney to take steps under Family Code 3131 to recover the child from FL. This is the easy route, but the court may eventually tax you and the other parent, assuming she has any money, to reimburse the County for whatever it costs for the DA recover the child.

I'd ask for #1 first, and #2 in the alternative.

[mishelle2]

OK, so got a response today in the mail, she subed in an attorney, who as my atty said today (when I subed him in and cut him a check) is just wet behind the ears, (shes been lic for 4 years practicing under a criminal law atty, has been doing family law for a few months) (hes been family law only atty for 32 years)

anyways, all her response says is:

 Other: I consent to the following order:  florida should have jurisdiction as it is childs domicile since 1999
UCCJEA prioritizes home state jurisdiction in section 201

the state which is home state of child currently, or was the homestate within six months of the commencement of the proceeding if the child is absent from the state but a parent or acting parent continues to live in state.

1.Doesnt that last paragraph, prove my case for me?? since I have never left the state of CA??

2. What do you think of this?

[socrateaser]

>1.Doesnt that last paragraph, prove my case for me?? since I
>have never left the state of CA??

The attorney is referencing an irrelevant part of the UCCEJA. The FL court has already relinquished jurisdiction to CA, and this attorney is attempting to get CA to do the same in favor of FL. Legally, there's nothing preventing this ping-pong game from occuring, but I doubt that the CA judge will refuse jurisdiction, so as to place you in permanent limbo. If it did, then you would have no choice but to appeal on grounds that your fundamental rights to custody are being denied by an idiosyncracy of the UCCEJA, and that the CA court must exercise jurisdiction in order to provide you with due process of law.

>2. What do you think of this?

The attorney may be green, but she may inadvertently create a very knotty problem of first impression for the court and thereby keep you from any custody exercise until the matter can be heard on appeal.

In my opinion, your attorney needs to emphasize that FL has already relinquished jurisdiction to CA, and that it would be fundamentally unfair to permit the other parent to utilize the legal system to thwart your reasonable exercise of custody, because to do so is to announce to parents that they can avoid any responsibility to the other parent by simply removing their children from CA. This is not fair play and substantial justice.

But, it "is" a very interesting legal argument.

[mishelle2]

OK, SO I spoke with atty office today, and .... atty went through case with fine tooth comb, he said exactly what you said and he also said that he believes that if the bm would have given the FL courts a true copy of the child support order(she only submitted a copy and you cant see parental relationship on it.. so its a dr'd copy) that her case would have been tossed in the first place, as the judgement clearly states:
 JUDGEMENT ESTABLISHING PARENTAL RELATIONSHIP AND CHILD SUPPORT: THEN IT SAYS: THE COURT PURSUANT TO ... OF THE CA CODE OF CIVIL PROCEDURE, HEREBY RETAINS JURISDICTION WHICH PERTAINS TO THIS JUDGMENT.

my atty is preparing a response to her dec.. and well see monday how it goes... However I am confident in my atty, as I have heard the judge tell other attys to call him for clarification as to what the law means.

thanks soc...

[mishelle2]

Soc,

 Just wanted to let you know how it went, .. well we were in court all but 3 minutes, her attorney started in about jurisdiction, my atty cut her off reminding judge of dismissal in FL and the judgement for parental relationship.. judge said case in FL was dismissed, CA should have had jurisdiction entire time, DAD has always had daughter for summer and this will continue, dad will have whatever dates he wanted and parties will have mediation while child is here and child can be interviewed. DAD will pay for entire airline ticket and mother will send him a  check for 1/2 immediately.

Well bm blocked all emails, when I tried to send airline itinerary, therefore I faxed them to her work, and my attty faxed them to her atty. So.. we'll see if she is going to put her on the plane next Sat.

but I do have a question

in bm's responsive declaration, she didnt ask for any custody/visitation she only put this should be litigated in FL.

1.Doesnt she have to ask for what she wants prior to mediation?
2. If she doesnt what happens?

thanks..

[socrateaser]

>in bm's responsive declaration, she didnt ask for any
>custody/visitation she only put this should be litigated in
>FL.
>
>1.Doesnt she have to ask for what she wants prior to
>mediation?

Nope. Mediation is mandatory in CA -- the court must order it. You can request to have the court waive it if the parties are too estranged for mediation to be successful, but it's not a good idea, because it may imply unccooperativeness on your part. Whereas, if you have mediation and the other parent stonewalls, then the judge will know that you tried, and failed to find any common solutions.

>2. If she doesnt what happens?

Nothing. You have mediation and then if no settlement, you go to trial. Unfortunately, the court has already demonstrated a preference for maintaining the status quo, which basically means that unless you can show some serious abuse on the mom's part, or she just refuses to show up, summer vacation is what you'll end up with after trial.

So, be careful about how you spend your money. Your attorney may want to "fight for justice," which may make you feel good, but at what price? Make certain that he levels with you about your chances and if they're not extremely good, then tell him to minimize the trial time and just ask the court to give you the summers.

[mishelle2]

Soc,

Right now, What I have asked for in my petition is :  Every summer, every other Winter and Spring break (joint legal/joint physical)
However when mother responded she didnt say anything about what she wanted, I was just curious if she would need to submit something prior to mediation, as in the past with my sons case, both parties said what they want so the mediator knows what to mediate..  I am all for mediation as I have bent over backwards attempting to compromise, to be stonewalled by bm. My attorney is pretty straight up, he has yet to tell me to ask for the impossible (with my sons case) so I am confident he'll do just as good with this one.
However our daughter is almost 13 (in OCT) and she has always wanted to live here with me, if she is interviewed and says I want to stay here with my dad..  (I know you dont read tea leaves but.. )

What will happen if child states to mediator she wants to stay here in CA?

Any other suggestions?