Changing jurisdiction- can it be done with no open court case, or do I have to either open one or wait until he opens one? - Mothering Forums

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#1 of 6 Old 01-30-2014, 06:54 AM - Thread Starter
 
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My son's father and I battled in court for custody, then visitation, in NY.  Jurisdiction was and is in NY.  I was, however, allowed to move back to my home state of MA during our court battle and given sole physical and legal custody, my son's father was given supervised visitation.  This was two years ago and my son still has supervised visitation at the halfway point.  Visitation is every 6-8 weeks for two hours.  My son is now 3 years old.  There is a history of abuse towards me and my older son (not the same father) and a history of threatening to kidnap my son, but so far, he's "been on his best behavior" during his supervised visitation.  (I know this is just an act, but I'm not sure how to prove it- to the courts, he's gonna try to look like SuperDad being denied his child.)  My son's father recently told me in an email that he plans on filing for unsupervised overnights next year when my son turns four.  I cannot let this happen!

 

 Not only will my son not be ready (he may have a sleep disorder- he does not sleep through the night, wakes sometimes 3-4 times during the night, takes forever to fall asleep, such a light sleeper, the slightest noise, light or change of routine wakes him, and more often than not, will SCREAM for an hour or more when he wakes in the night, and has been this way since birth), but my son's father has anger issues and a history of abuse and I'm afraid of what will happen to my son in a nighttime situation with no supervision and the child "not behaving" by waking.

 

I'm also afraid that as a "solution", my ex may try to cosleep with my son.  When I was with him before my little one was born, he always slept naked, and then would use any and every excuse to leave the bedroom naked, even though I told him to put some clothes on, and then make sure my older son (then 15) saw him walking around naked, or he'd make some comment about us being "naked on the bed, but she made me put pants on to come out here", and when he changed his diapers, he would use excessive wiping in the boy-part area, lifting every part and moving it aside to make sure it's clean, etc, even for just pee, etc, something the supervisor interperated as him being a thourough, attentive Daddy, though my gut instinct tells me there was something weird about his fascination with my son's boy-parts or with my older son being pretty much told someone was having sex with his Mother.  (And as a side note, he does have a history of that kind of abuse towards at least two women, though never been convicted.)

 

Also, my son's father brings home a string of women to have sex with and I have no doubt this will continue once he's alone with my son for overnights, and given his extremely casual stance on showing off he can get some, I'm worried he he will not only cosleep with my son, but cosleep naked, possibly with a random girlfriend (and possibly mistreat or abuse the child if he doesn't "cooperate" by sleeping).

 

Is there anything I can do to change jurisdiction before he brings it back to court next year (or whenever the urge hits him) for unsupervised visitation and/or overnights, or do I have to wait until he files, and then counter file?  I have no reason to go back to court and can't afford it, so I can't file anything first, but since he's not interested at all in visitation in my home city, I strongly suspect if he had to file in MA to change anything, he won't bother, or at least for a long time, and I can buy at least a couple more years of my son having supervised visits.


I pray for the day Family Court recognizes that CHILDREN have rights, parents only have PRIVILEGES.  Only then, will I know my child is safe.
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#2 of 6 Old 02-01-2014, 12:02 PM
 
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This is how I have understood it in my case...my granddaughters custody was given to me 6 years ago in another state...I recieved permanent sole custody with supervised visits at my discretion...they hardly ever came...no child support...

 

I moved home to another state almost 2 years ago..My lawyer told me  this..That since the child has been living in another state for over 6 months(has residency) then if they file for visitation/custody it would probably be handed over to the state the child is residing in..the longer the residence the better...So if my son or his x girlfriend tried to get some type of hearing they would probably try to start it  in their state but when I got the papers I would hand it too my lawyer who would get it put in this state because it is the childs residence...That happened to my brother too...he had to go to court for visits to the state his baby daughter was living in...You already have sole custody w supervised visits...I don't think you have much to worry about...I would however make sure you have a lawyer waiting in the wings that you know will do the job if it is ever needed...

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#3 of 6 Old 02-01-2014, 03:24 PM
 
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I have no personal experience, but based on what I've seen people saying about this it was also my understanding that as long as you've lived in the new place long enough to establish residency (I think 6 months or so), they have to file in the courts that the child resides in. I hope that this is the case, although agree you should look into it to make sure. Whatever happens, I really hope that your ex isn't able to get unsupervised overnights, certainly not with your son so young given your ex's history.

 

Is your son in therapy? If not, I'd consider getting him into therapy if you're at all able to. I know a few people whose child was abused and told their therapist, and the therapist was able to testify to the abuse. It makes it easier to avoid a "he said/she said" or having it spun so that you're guilty of parental alienation rather than that your son is the abuser.


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#4 of 6 Old 02-02-2014, 02:04 PM
 
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You must double-check, to be sure - because I am not a lawyer - but I believe that the federal Uniform Child Custody Jurisdiction and Enforcement Act has a clause directing that the state where the child resides should have jurisdiction.  I also believe that states vary, regarding how long it takes to establish legal residency and switch jurisdiction.  But surely two years is ample, in any state! 

 

If there's an open appeal of a NY ruling, that would (could?) keep jurisdiction there, until that appeal is resolved.  Otherwise, I believe you have the inarguable right to have future custody issues heard in MA.  It's just a matter of when/how you do it.

 

#1- If you're satisfied with what's going on now, you might wait and see if your ex actually files a petition to modify.  Parents who feel marginalized tend to threaten things that make them sound/feel like they have more control/power than they do.  Following through is a different matter.  His threshold is this:  If he makes the effort to get more relaxed visitation and fails, will it be more humiliating/frustrating than his current situation?  (Not to mention his financial considerations.)  If he does file, your first response could be petitioning to have his motion heard in MA, as is proper since that's where the child lives.  

 

If you're looking to delay a ruling because you're concerned he might win, the simple physical process of having the case file transferred will slow things down somewhat; and you'd have a bigger delay, if he were to argue about changing jurisdiction.  I think you'd have no reason to worry about him winning that point, but the courts would have to take time to address it, before scheduling a hearing on his actual petition.

 

#2- You could proactively register your current NY orders, in MA, as is your right under the UCCJEA.  You can do this any time you want, even if there's no open issue.  It simply facilitates MA authorities enforcing your out-of-state custody orders, should any issues arise.  At the very least, this will establish a MA case number.  When you're at the courthouse, registering your order, ask the clerk if you're required to follow a certain procedure, to transfer jurisdiction; or - since you've lived there 2 years - are you entitled to simply file any future petitions in that court, using your new case #?  Later, if your ex files something in NY, you might file your response - asking that MA hear the case - in MA, rather than in NY, so both courts are involved and you're not solely dependent on NY to relinquish jurisdiction.

 

My husband (an IN resident) registered his IN custody orders in CA, when his ex-wife was living there with their son.  At that time, his son had only lived in CA for a few months and there was an open appeal in IN, as well as several open contempt issues scheduled to be heard by the IN trial-level court.  Under those circumstances, registration of the orders in the child's new home-state did not automatically accomplish a transfer of jurisdiction.  But perhaps in your case, it would.  However, establishing a CA case number did make it easier for my husband to do things like subpoena CA residents for depositions, to be used in trials in IN.  If your ex files something, you may want to quickly be able to arrange depositions of people in MA (friends? relatives? pediatrician? day care providers?).  Having an existing MA case # would help.


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#5 of 6 Old 02-03-2014, 09:58 PM - Thread Starter
 
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Originally Posted by sillysapling View Post
 

Is your son in therapy? If not, I'd consider getting him into therapy if you're at all able to. I know a few people whose child was abused and told their therapist, and the therapist was able to testify to the abuse. It makes it easier to avoid a "he said/she said" or having it spun so that you're guilty of parental alienation rather than that your son is the abuser.

 

My ex never abused our mutual child- he abused my older child when my little one was a newborn.  My older child was in therapy and (hospitalized in a mental health hospital) due to the abuse, and is now 18 and chooses to no longer be in therapy because this happened 3 years ago.

 

Quote:
Originally Posted by VocalMinority View Post
 

You must double-check, to be sure - because I am not a lawyer - but I believe that the federal Uniform Child Custody Jurisdiction and Enforcement Act has a clause directing that the state where the child resides should have jurisdiction.  I also believe that states vary, regarding how long it takes to establish legal residency and switch jurisdiction.  But surely two years is ample, in any state! 

 

If there's an open appeal of a NY ruling, that would (could?) keep jurisdiction there, until that appeal is resolved.  Otherwise, I believe you have the inarguable right to have future custody issues heard in MA.  It's just a matter of when/how you do it.

 

#1- If you're satisfied with what's going on now, you might wait and see if your ex actually files a petition to modify.  Parents who feel marginalized tend to threaten things that make them sound/feel like they have more control/power than they do.  Following through is a different matter.  His threshold is this:  If he makes the effort to get more relaxed visitation and fails, will it be more humiliating/frustrating than his current situation?  (Not to mention his financial considerations.)  If he does file, your first response could be petitioning to have his motion heard in MA, as is proper since that's where the child lives.  

 

If you're looking to delay a ruling because you're concerned he might win, the simple physical process of having the case file transferred will slow things down somewhat; and you'd have a bigger delay, if he were to argue about changing jurisdiction.  I think you'd have no reason to worry about him winning that point, but the courts would have to take time to address it, before scheduling a hearing on his actual petition.

 

#2- You could proactively register your current NY orders, in MA, as is your right under the UCCJEA.  You can do this any time you want, even if there's no open issue.  It simply facilitates MA authorities enforcing your out-of-state custody orders, should any issues arise.  At the very least, this will establish a MA case number.  When you're at the courthouse, registering your order, ask the clerk if you're required to follow a certain procedure, to transfer jurisdiction; or - since you've lived there 2 years - are you entitled to simply file any future petitions in that court, using your new case #?  Later, if your ex files something in NY, you might file your response - asking that MA hear the case - in MA, rather than in NY, so both courts are involved and you're not solely dependent on NY to relinquish jurisdiction.

 

My husband (an IN resident) registered his IN custody orders in CA, when his ex-wife was living there with their son.  At that time, his son had only lived in CA for a few months and there was an open appeal in IN, as well as several open contempt issues scheduled to be heard by the IN trial-level court.  Under those circumstances, registration of the orders in the child's new home-state did not automatically accomplish a transfer of jurisdiction.  But perhaps in your case, it would.  However, establishing a CA case number did make it easier for my husband to do things like subpoena CA residents for depositions, to be used in trials in IN.  If your ex files something, you may want to quickly be able to arrange depositions of people in MA (friends? relatives? pediatrician? day care providers?).  Having an existing MA case # would help.

 

Thank you for all this information.


I pray for the day Family Court recognizes that CHILDREN have rights, parents only have PRIVILEGES.  Only then, will I know my child is safe.
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#6 of 6 Old 02-04-2014, 05:36 AM
 
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Originally Posted by kblackstone444 View Post
 

 

My ex never abused our mutual child- he abused my older child when my little one was a newborn.  My older child was in therapy and (hospitalized in a mental health hospital) due to the abuse, and is now 18 and chooses to no longer be in therapy because this happened 3 years ago.

I meant in case your ex becomes abusive. Your post suggested that this is a serious concern for the situation. Some of the people I know who had this happen, the abuse was revealed in therapy. It can be better to start the therapy first so that way the therapist knows what's normal for the child and will be better able to recognize the first warning signs.  I wouldn't tell the therapist that you're starting it out of concern that your ex will turn abusive, because again that may be used as proof of parental alienation.


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