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-   -   How to file a motion to dismiss for lack of jurisdiction in a child custody case (https://www.askmehelpdesk.com/showthread.php?t=401008)

  • Sep 29, 2009, 10:33 AM
    emyfahie2009
    How to file a motion to dismiss for lack of jurisdiction in a child custody case
    I let my 3yr old son go on vacation with his dad that he had no contact with for three years. His dad only had him for a week in VA nad he filed for custody. My son and I have been living in Fl for the past three years. I have spoken to numerous attorneys and they told me that I can file a motion to dismiss due to lack of jurisdiction. The problem is I am a full time college student and I am unable to pay a lawyer. Does anyone know what do I have to do to file the motion by myself without having to get a loan to pay a lawyer to do it for me.
  • Sep 29, 2009, 10:42 AM
    JudyKayTee

    Where did the father file, what State? I'm reading VA but I'm not sure.

    When were you notified of this - time runs rapidly in a matter like this.

    Somebody can help you do this yourself. Have you checked to see if you qualify for some type of legal aid, though?

    What were the grounds for a request for change of custody?

    What is the legal status of the father? He is adjudicated the father in some manner? Does he pay support?

    Not answering a question with a question but need info in order to answer correctly.
  • Jan 12, 2010, 07:32 PM
    Jessamyne
    Write on a piece of paper "Motion To Dismiss For Lack of Jurisdiction," put under it that you and your son have been living in Florida for 3 years and that is where the custody order was issued not Virginia. Make an affidavit that repeats the same info and have it notarized. Attach to motion. File with court. DO IT BEFORE HE IS IN VIRGINIA 6 MONTHS OR YOU WILL HAVE TO FIGHT IT THERE. Read everything you can on the UCCJEA. Good luck. Alternately, call the police with your custody order and see if they'll contact the police department there, or try the FBI. What your son's father has done is kidnapping.
  • Jan 12, 2010, 07:37 PM
    Jessamyne

    Amendment: Run it by a lawyer first in the state you live in.
  • Jan 12, 2010, 07:38 PM
    JudyKayTee

    OP has not been back since September - no one knows how this worked out for her.

    My thought would have been that she should seek assigned counsel - representing yourself is a mistake.

    I cannot find anything to support parental kidnapping here. What did you find?
  • Dec 2, 2011, 12:11 AM
    Oliviar
    Your son lived with you, but do you have "legal" custody of your son?

    I'm not sure what the rules are in Florida, but if nothing has ever been filed as far as you having legal full custody of him, you technically do not have legal full custody of him even though he has been living with you (because nothing has been filed with the court to claim that right). As harsh as it is, your son's lack of morality father was technically legally allowed to file for custody of his child since he is his biological father since there was no actual court case to establish is the custodial parent. *It is important to make it known to the court who has custody AS SOON AS THE CHILD IS BORN, because until then, neither one of you have "legal" custody. If you spot them in public, then maybe you can go and get your son, but if he is in the privacy of his father's properties, and you have no paper to present to the officers that you are the custodial parent, there is nothing you can do but fight the case where he opened it. Because if you really want to see your son, you will need to handle it the civil way. If you ignore his father's case in VA, and open it in another state still without physically having your son, you may be in the same situation that the father is in, and the father can dismiss your case for lack of jurisdiction the same way, and all this while you still don't have your son. I'd fight in immediately in VA, and their usually are legal aid programs for people of you economic state.
  • Dec 4, 2011, 02:42 PM
    GV70
    Quote:

    Originally Posted by Oliviar View Post
    Your son lived with you, but do you have "legal" custody of your son?

    Dear Oliviar,
    The birth mothers HAVE legal and physical custody by presumption.:):)

    Quote:

    Originally Posted by Oliviar View Post

    but if nothing has ever been filed as far as you having legal full custody of him, you technically do not have legal full custody of him even though he has been living with you (because nothing has been filed with the court to claim that right).

    Wrong! If nothing has been filed , that means the mother has sole legal and physical custody over her child.

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