I had a divorce in NM 2005 final decree ordered. My ex filed a motion to modify final decree regarding custody and support. My children and I have lived in California for 4 years. The child support has been transferred to the California division of child support already. Can I file a motion to dismiss for lack of jurisdiction?

If you ex still lives in NM then NM has jurisdiction.

Why if we are not residents?

iwhy if we are not residents?

Here (http://en.wikipedia.org/wiki/Uniform_Child_Custody_Jurisdiction_And_Enforcement _Act)'s why.

Thank you I have read this site, however one example does not make sense in my case.

For an example of #1, the parents divorce in Texas, and mother and children move to Mississippi. The father continues to live in Texas and the children maintain a significant connection to Texas by visiting Texas often and spending their summers there. Three years later father files suit in Texas to modify custody. The mother attempts to transfer jurisidiction to Mississippi. Texas should not relinquish jurisdiction to Mississippi.

In my case the children are not allowed to speak or see their father by court order (final decree). So wouldn't that mean my kids have no "ties" to New Mexico? Just trying to understand because I don't want to file a motion that will not have any relevance.

It may also stand that transferring the child support case to California was illegal. How and when did you get it transferred there?

First, please use the Answer options on the bottom of the page when posting follow-up questions or info, not Comments.

You are hanging your hat on the second part of an example, without reading the law. This is the important part:


A court which has made a child-custody determination consistent with UCCJEA has exclusive, continuing jurisdiction over the determination until either (1) that court determines that neither the child, the child's parents, nor any person acting as a parent has a significant connection with the State that made the original order and that substantial evidence is no longer available in the State concerning the child's care, protection, training, and personal relationships, or (2) that court or a court of another State determines that the child, the child's parents, and any person acting as a parent do not presently reside in the State that initially made the child custody order.

Since the original custody order was made in NM, then NM retains jurisdiction as long as one parent still remains there.

Now, the example you cite was a precedent set by TEXAS courts. You can try to use that precedent to sway the NM courts. Whether you will succeed or not, I don't know. You definitely will not get a dismissal on lack of jurisdiction since NM still has jurisdiction. What you will need to do is argue in NM courts that jurisdiction needs to be transferred.

It may also stand that transfering the child support case to California was illegal.

Not always... Every year hundreds of cases are transferred from Pa to other states even though Pa is a home state under UCCJEA.The "home state" has right to relinquish its superior rights under demand...

Not always...Every year hundreds of cases are transferred from Pa to other states even though Pa is a home state under UCCJEA.The "home state" has right to relinquish its superior rights under demand....................

The whole point of UCJEA was to prevent State shopping because of child support laws. I agree they can give up rights but if there is an objection then they will retain those rights. Im wondering what circumstance lead to this change. California child support is well known for overstpping the law and using bully tactics to get their way. Even lying isn't beyond their scope.

The support case was transferred to California because I filed with the California child support division to enforce unpaid child support. I tried to file with NM and they said I couldn't because I wasn't a resident. So California had their attorneys transfer the case with full consent and knowledge of NM. They handle all child support issues and modifications (which by the way I have requested 3 times to modify and my ex refused to provide financial info). Thanks for all your answers but I contacted a NM lawyer and he stated that all custody and support is now legally under California jurisdiction without question. So I will be filing for dismissal.

I think it is so sad that a low life such as my ex can not show up to his own divorce and custody hearing, lose by default, never pay a penny in child support, by court order cannot see or contact his own children yet file ridiculous motions in court. Hopefully laws can be passed regarding using children as a way into someone's life for the sole purpose of harassment.

so california had their attorneys transfer the case with full consent and knowledge of NM.

And you didn't think that was information we needed? Had you told us that in the beginning our answers would have been different.

What information are you talking about?

Oh I see now what you are referring to. I stated it in my original question.

The child support has been transferred to the California division of child support already.

It was stated in my original question. "the child support has been transferred to the california division of child support already"

Yes you said "the CHILD SUPPORT" was transferred to CA Child support. You didn't say that the custody/support case was transferred to CA jurisdiction. What you said implied that only a portion of the case was transferred not the whole jurisdiction. Had you given us accurate info to begin with we could have given you more accurate advice.

That is accurate info. The CHILD SUPPORT was transferred to ca. nothing having to do with custody has, I have not modified nor transferred the custody. I gave all the information accurately. I am not sure where you read the custody was transferred?

i tried to file with NM and they said i couldn't because i wasn't a resident. so california had their attorneys transfer the case with full consent and knowledge of NM. they handle all child support issues and modifications (which by the way i have requested 3 times to modify and my ex refused to provide financial info). thanks for all your answers but i contacted a NM lawyer and he stated that all custody and support is now legally under california jurisdiction without question. so i will be filing for dismissal.

This is why. Did the custody get transferred to California or not?

that is accurate info. the CHILD SUPPORT was transferred to ca. nothing having to do with custody has, i have not modified nor transferred the custody. i gave all the information accurately. i am not sure where you read the custody was transferred?


Don't you remember what you write even a few mintues ago? You just posted this:

i contacted a NM lawyer and he stated that all custody and support is now legally under california jurisdiction without question.

So what is accurate? If just the support was transferred then NM still has jurisdiction over the custody issues. If both were transferred then you should have said that in the beginning.

OK let me try to word it differently because clearly you have an issue understanding how I have written my answers. I stated in my original question CHILD SUPPORT has been transferred to CA. so, now DIVORCE DECREE WITH CUSTODY ORDER HAS NOT been transferred to CA. I did not say it had been transferred nor did I say CA had jurisdiction over custody, the NM lawyer I contacted stated "that all custody and support is now legally under california jurisdiction without question" because my children and I have been residents of CA for more than six months. I have not forgotten what I wrote but I do believe you have misread what I wrote because with the quotes you re-posted I still fail to read where I said the custody order had been transferred? I don't know how your answer might have changed from the info you believe was inaccurate, but either way thank you for your help.

Sorry, but the problem is not in my understanding but in your expression. You claimed the NM lawyer told you it was under CA jurisdiction.

if the custody case was not explicitly transferred to CA, then it is still under NM jurisdiction. I think there is a good possibility that you can get it transferred to CA which I think is what the NM lawyer was trying to tell you. But you have to specifically get it transferred it is not automatic. Hence you will not be able to get a dismissal on lack of jurisdiction. Which is what I told you from the beginning.

The lawyer didn't say anything about transferring the case. He just said exactly if you and the children now reside in California, both cases fall under ca jurisdiction now. Now I am not sure what is right.

I think the only thing I can do is file a motion to dismiss for the child support and a request to relinquish jurisdiction for the custody case. Do you recommend anything else? Do I need specific reasons to request that jurisdiction be transferred?

Your going to have to quote case law and how it applies here. If it doesn't apply then your application will be rejected.

Here is the full text.

Ref:
http://www.law.upenn.edu/bll/archives/ulc/uccjea/final1997act.htm

the lawyer didn't say anything about transferring the case. he just said exactly if you and the children now reside in california, both cases fall under ca jurisdiction now. now i am not sure what is right.

i think the only thing i can do is file a motion to dismiss for the child support and a request to relinquish jurisdiction for the custody case. do you recommend anything else? do i need specific reasons to request that jurisdiction be transferred?

Lawyers are not infallible, neither am I. But my interpretation of the law is that, as long as one of the parties in a custody case remains in the original jurisdiction, then that jurisdiction still applies. While it may be possible to transfer jurisdiction, a petition to do so has to be submitted to the court that has jurisdiction and is not automatic. If both parties have moved from the jurisdiction, then jurisdiction rests where the children live. A petition to change jurisdiction can then be filed with a court local to where the children reside.

I would suggest consulting Family Law specialists in both states. Many will offer free consults. Also some law schools will have clinics that may help you prepare the petition is you want to go pro se.

I do wish you luck. Our purpose here is to help you understand the law so you don't waste time with court motions that will be denied.

I hope you will keep us posted.

Thank you so much. You have been very helpful. I found a legal aid office here in OC that should help me. It says that all domestic violence cases are free regardless of income and this case was heard in the FV NM court so I am hoping I can get some type of help to petition a local court here to change jurisdiction. I will definitely keep you posted. I have court the 28th of this month. I will file for a telephonic hearing because, one I do not have the finances to go, and two I am actually scared of being in a city where my ex can possibly do something to me. So just knowing I can do it over the phone is a HUGE relief. Again, thank you all for your advice I will keep you updated. Califdadof3 thank you for the link I am going to read it now.

Update. I contacted OC legal aid and they transferred the case to an attorney for the legal aid in albuquerque. That attorney filed all motion paperwork and the existing OC court order with the NM court. NM court has agreed to dismiss for lack of jurisdiction. Thank you all so much for your patience with me and especially your helpful comments.

Thanks for posting an update and I'm glad everything worked out all right.