Custody agreement with an out of state XP - Mothering Forums

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#1 of 13 Old 08-25-2014, 10:08 PM - Thread Starter
 
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Custody agreement with an out of state XP

I'm seeing some benefit to finally getting a custody agreement with my XP - just makes life easier with MD/School/police, if it were to ever come up. Just needing something on record that says "I Have Custody".

I'm in NC; he's in Oregon.
Where I get caught up is in the visitation.
Right now, with no agreement, I don't HAVE to pay for us both to go back to Oregon for a visit, and we didn't this past summer.

I'm not an evil person and I talk to his extended family very often. We WILL get back to Oregon. I want him to see his family, and my son has a photo book right next to his bed that we look at often. I am not removing his dad/family from his memory. Absolutely not.

But I fear that if I had an agreement to get out there every year, or more, 2x a year... that's over 2K every visit. And on my single income, that's just impossible. Maybe I can swing once a year every other year, but I honestly don't make that kind of money to Fly, and rent a car, and find housing for 2 weeks, flying with a 5yr old who can't fly alone.

At the same time....
Even though I think I trust him, even though I think I trust his family... even though Everything... without a custody agreement, I understand that once my son is in their custody... They Have Custody. AKA, XP could just Keep him and not give him back.
Which makes me consider, I don't want to travel back to Oregon without a custody agreement in hand.

Double-edged.

I have a lawyer friend who's consulted with me today and said I can file papers on my own without going through the courts - if he would agree. But even with a self mediation, all papers will say he should have at least one visitation a year; she's thinking 2x is normal... 2 weeks in summer and Xmas.
And because I'm the one that moved, I'm the responsibility for getting the child back out there - which also means me as well, since he's only 5yo.
And we're back to.. there is absolutely no way I can afford that, even if it is the right thing to do. And my lawyer friend tells me the paperwork doesn't take in to consideration the $$ to travel, just the RIGHT to visitation.

Is that true?

So, I'm looking for some advice.

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Last edited by JordanKX; 08-25-2014 at 10:26 PM.
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#2 of 13 Old 08-25-2014, 11:57 PM
 
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I'm curious as to why she said that. I'm under the impression that the papers can say pretty much whatever you want, so long as the father agrees (which hopefully he will since he is not involved anyway). Or are you worried that he will take this opportunity to get something more set in stone?

Would he sign if you phrased it as you having primary physical and legal custody, with "reasonable visitation" to him? That sounds the closest to what is happening now and doesn't lock you into anything.

Our basic custody papers in PA basically just had a lot of boxes to check, with room to write in the actual schedule, so there was a lot of leeway, and my lawyer said the judge will usually sign something if the parents agree.
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#3 of 13 Old 08-26-2014, 01:30 AM
 
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Agreeing with PP. Your XP could agree to 0 visitation and you could agree to 0 child support and as long as you both agree- that'd be fine. The judge might want to double check that it really is what both parents want- but trying to force two parents who agree into a court battle (where they'd both be battling the court) makes no sense.

If your XP can afford travel expenses and wants to see his kid, you could put into the custody that either he comes to visit you, he covers the expenses, you split the expenses based on income, etc.

(you haven't talked about child support at all- have you looked into it?)
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#4 of 13 Old 08-27-2014, 11:07 AM
 
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Generally speaking, anything that you and the father agree to and submit to the court as a parenting agreement will be approved by the court unless state law specifies that the agreement is not legal (this might mean that a required paragraph is missing) or the agreement is not in the child's best interest.

I have never heard of a state mandating a minimum amount of parenting time/visitation against both parents' wishes. They can't force a parent to see their child. The specifics will be dependent on NC law. If there is a standard visitation schedule (I don't believe NC has such a statute) that requires evidence demonstrating why the standard isn't in the child's best interest--for example, because the other parent lives on the other side of the country making the standard impractical--you would simply include explanation in the agreement of why it's in the child's best interest to deviate from the presumed standard.

Your agreement can be flexible and unstructured. You might agree to one annual visit in the father's home state and one annual visit in NC (i.e. the father should travel to NC). Alternatively you might agree simply to open visitation. If the father agrees to this arrangement, the court assumes that you two get along well enough to facilitate the meaning of "reasonable visitation." If you're worried about the court agreeing to the lack of structure, you could include language indicating that you'll inform the father with some minimum notice if you travel to OR so that he can schedule time with the child and that he'll inform you with some minimum notice if he plans to travel to NC and wants to schedule time with the child--that the father spending time with the child when they're in proximity of each other takes priority. Or you could include evidence that this lack of structure has worked for you so far, citing how you've taken a trip each summer and cooperatively worked to schedule that, stating that you both want to continue with this cooperative relationship.

As to the costs of visitation, the court might consider "who moved" in allocating the costs, but they should consider who is capable of paying. NC guidelines specifically allow for expenses for transporting the child between homes to be included in child support orders weighted by income. If you're carrying all the costs of raising the child (you probably should consider filing for child support to address that issue if the cost for visits is a burden) he could at least contribute toward the cost of seeing the child. One way to achieve a split of costs is to have you do one of the trips and he do one of the annual trips, rather than dealing with receipts and reimbursement. Given the way you're doing things now (where you go and stay in OR for two weeks in a hotel) I would encourage you each paying for your own trip so that it's your discretion how expensive the trip will be--that is, do you stay in a motel or in a 4-star hotel--rather than arguing you shouldn't have to pay for half of his trip at an all-inclusive resort and first-class plane tickets. It is perfectly reasonable to expect a parent visit the child in his own environment rather than force the child to do all the travel.


Also consider:
NC section 50-13.2(c) states "An order for custody of a minor child may provide for such child to be taken outside of the State, but if the order contemplates the return of the child to this State, the judge may require the person, agency, organization or institution having custody out of this State to give bond or other security conditioned upon the return of the child to this State in accordance with the order of the court."
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#5 of 13 Old 08-28-2014, 04:30 PM - Thread Starter
 
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I'll admit, I'm now genuinely surprised at what my lawyer friend recommended to me. She did me a favor consulting without a fee, but she really harped on... My responsibilities, and 2x a year. I'm happy to hear your opinions that there are options and the 2x a year is an ideal, but not set in stone; and something that can be mediated between two parties.

I'm not sure that XP would be a willing party - we do not communicate at all, and I'm only served with child support papers when he wants a change (no notification from him personally beforehand). He is about to luck out on that end, now that DS is entering public school and I have no daycare expenses to claim; likely my child support order will disappear, not that it matters terribly to me since he's never paid except in extreme lapses when OR threatens to take his driver's license away.

Thank you for the citations and lengthy explanations. I am new to this all and perhaps need to look at the online forms and begin them... see what questions arise at that time. I have been fearful of moving forward based on my consult; and just life in that I make a decent wage (but still only One income!) and am always disqualified for any services I look in to. This seemed an unnecessary battle because things are working right now... Except, in the long-run, is the right thing to do.

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#6 of 13 Old 08-28-2014, 07:59 PM - Thread Starter
 
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So I just finished a long chat session with my lawyer friend, and she is apparently equally confused (she is a 2yr lawyer, so maybe she just doesn't know); says everything differs by county. But here are her statements:

---
To get a court order entered, there has to first be a lawsuit filed (a Complaint for Child Custody). This doesnt mean you have to get into a legal battle, the initial Complaint just has to be filed in order for the court to have jurisdiction to enter a court order for custody.
Most counties in NC then require the parties to attend mediation. Because [XP] lives so far away, he can ask the court to waive the requirement for mediation. Alternatively, if you guys negotiate the terms of the order before the Complaint for custody is even filed, you can file the Complaint and immediately submit the executed Consent Order for entry by the judge bypassing mediation, altogether.

An advantage of mediation for parties who cant afford attorneys is that the court appointed mediators usually draft what is called a "Parenting Agreement" which is a contract, reflecting the terms the parties have negotiated and agreed upon, which then gets converted into a court order by a motion to enter the parenting agreement.

----
We did finally decide that XP and I could agree on things ahead of time before filing a complaint; and that I could file a complaint without a lawyer.

However my county provides no Self-prepared documents online (and she worries that since they are not online, perhaps the county does not allow self-prepared at all). Either way I'm looking at going to the Clerk of Court to find out what rules are within my county.

In all our searching of nearly 2hrs tonight together online... we didn't find anything EASY. I know that my LegalZoom account has custody documents available per state, but she dismissed them and said they wouldn't hold up (whatever that means, and then scares me of my will and trust that I've created with another lawyer through LegalZoom that they might not be real?!).

---
So... I ask you online mothering friends.. where do you even get started? Did you get a lawyer? Did you walk in to the Clerk of Court and find necessary documents? Because I'm not even sure the XP would agree to me starting this process, and if it's requiring a ton of steps... I mean, I'm not lazy, I'll go through the steps... I honestly seem overwhelmed with where to start. My lawyer friend gave me the site for Raleigh, NC proper that has everything online. My county has none of that.

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Last edited by JordanKX; 08-31-2014 at 06:20 PM.
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#7 of 13 Old 08-29-2014, 02:47 AM
 
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I was able to find the "standard" agreement at my county's law library. It wasn't available online otherwise, but I could go to the actual library, fill in the blanks on their computer ,and print it out there (and could have walked a few rooms over and filed it that same day for a small fee). I didn't end up going that route, but it's certainly worth a phone call to see if you can do that that as well. Just be careful to follow the instructions exactly-there were necessary cover sheets, etc. that are probably simple to do, but apparently need to be done exactly or the court won't take it.

And my state/county was the same as you described above, I had to file a complaint, but if at any time before mediation etc. ex and I had agreed, that would have been the end of it and a judge could sign off.

For that matter, I suppose if ex and I had gone together and filled out that paperwork at the law library, we could have signed it that day (with a witness) and just filed it? I"m not sure, but I don't see why not honestly, so again, something to look into.

I'm not sure how it would work since your ex is so far away-you may want to ask the law library if ex can sign in the presence of a lawyer or maybe his local court (I don't think a notary would work) since it sounds like he isn't likely to want to travel all the way here to sign some papers, especially if he is not on board with it all to begin with.

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#8 of 13 Old 08-31-2014, 04:58 AM
 
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"I'm not sure that XP would be a willing party"

That changes everything. This will only work if your XP is a willing party.
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#9 of 13 Old 08-31-2014, 06:13 AM
 
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Doesn't jurisdiction change once you have been away a certain period of time? Maybe waiting until you can do the custody agreement in your new state is the way to go?
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#10 of 13 Old 08-31-2014, 06:35 PM - Thread Starter
 
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Quote:
Originally Posted by Springshowers View Post
Doesn't jurisdiction change once you have been away a certain period of time? Maybe waiting until you can do the custody agreement in your new state is the way to go?
It's been 10 months now in the new state; 8 months on an NC license and documentation. My lawyer friend was concerned when we spoke in the spring that while I'd moved and had power-bills and such, the license would be the determining factor. Either way, now it's been 8 months with a license, so we should be good on having NC jurisdiction.

Which is a benefit to me in both directions:
If I file, HE would have to come here for mediation/waive mediation/find alternative means to sign legal documents in front of a judge (if the latter is even possible, and my lawyer friend was unsure if NC would allow that out of state)
If He files in Oregon, jurisdiction is still NC so even though the paperwork starts in OR, it'd be moved immediately to my county in NC and all of the above on his requirements.

So, yay for me.

Except.. as SillySapling brought up... the benefit to Self-Prepared is because we're two parties working together, and in our case... I don't think so. #1 , he won't talk to me; won't respond to my texts/calls/facebook/emails, etc. No Communication what so ever.
Now, granted, I have not brought up this issue of "I'm filing for custody and I think we could go about it amicably if you'd talk to me".. Maybe if/when I start the conversation, he'll respond. But I'm not holding my breath.

AND I'm not counting on his agreeing to any terms that don't require me to bring our child out to Oregon 2x a year. I mean, if given the chance to fight me on it, I think he'd fight.
Right now he'll stay passive-aggressively silent, living vicarious through his mothers connection to me and Facebook pictures, but If Given the Chance... I think he'll fight.

----
Which brings it back around cyclical to... Why do I care again? XP is in Oregon and doesn't have any money, nor is that changing. He will not be coming 2500 miles away to pick our son up from school unannounced.
So if my only concern is the headache of schools and MDs and, oh I can only imagine, all release forms for any school activities for the next 13yrs... I mean, that's HUGE and big and very important.

But is it enough to start the battle?
On that only, probably not.

Considering when I take our son to OR for a visit and leave him in his father's custody for 2hrs/4 days, whatever, and I don't have a custody agreement that ensures he will Bring Him Back, even though I trust him, or think I do, even if...
well, that might be big enough to warrant the battle.

I'm just not sure yet.

I know the simple answer is just.... call him/write an email and Talk to him about it, see what happens. But I really don't want to start this ball rolling without knowing exactly what I'm looking at.

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#11 of 13 Old 08-31-2014, 08:42 PM
 
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Can you prove that you're sending him messages? It'll be really good if you can show a history of you seeking to make contact and being rebuffed. You need to show the courts that you're invested in facilitating the relationship between your child and your ex.

Keep record of everything. Print out facebook messages/email/texts. Keep a journal of any phone calls and the response ("Left a message on X date saying...", etc). If this goes to court, be sure you're able to stand up and show that you're facilitating a relationship.

"AND I'm not counting on his agreeing to any terms that don't require me to bring our child out to Oregon 2x a year. I mean, if given the chance to fight me on it, I think he'd fight. "

Okay, that's not good at all.

For visits- Look up the laws in BOTH Oregan and NC. Find out what they say about custody (some states- both parents automatically get 50/50, some states physical custody is what matters). If your ex DOES refuse to return your son- on the bright side, it won't look good for him. It'd require him to force your son to miss school, and if he does it right he'll get slapped with parental alienation to boot.

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#12 of 13 Old 09-04-2014, 07:11 PM
 
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I think in this case, I might do as much research as possible, come up with a list of questions....and then try to get a consultation with one or two very experienced recommended family law lawyers in your area, preferably one who has a lot of experience working with high conflict divorces, but also has an interest in problem solving and a high rate of settling cases out of court (because from what you write about your x being passively aggressively silent and probably not cooperative, he would probably fit the profile of someone who might fight you on things just for the sake of ego and power/control). Some lawyers know their stuff but are used to going to court. Some lawyers know their stuff but are genuinely interested in a problem solving approach and avoiding court because they know how stressful it can be on everyone....but they also are experienced in court if it comes to that. The latter is the kind you would want to speak with.
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#13 of 13 Old 09-14-2014, 01:04 PM
 
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I would say, not from a legal point of view just my & my family member's experiences, to file. You can file anything you want to my understanding as long as it is keeping your child's best interest in mind. A judge may need to alter some things of course.
Is your ex requesting visitation at all? Because he could very well start the process himself if he wanted to, I would suggest you doing it to have the upper hand so to speak.
Regarding child support, unless he signs off his rights as a parent he is responsible for his child meaning he needs to be paying some type of support. That being said the support can be expected to be used for visitation expenses. I would also think about your child being able to fly there and back with an escort, meaning you will not need to do the trip. I get the sense you would not want that but it's something that could be brought up when you bring up costs for your flight, housing, etc.
ugh these situations can be so messy, I wish you luck!
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