Ask Me Help Desk - Back support

Quote:

Originally Posted by ANB428

Who do I need to call to check on this? The Family Court office? How can I get the case moved to the state that I am living in? I don't plan to go back to California since neither the father or I am from that state, we moved out there together. If anything ever needs to be modified to the order I will not be able to get out to California. I dont' have the money to buy a plane ticket or drive out there.

Every state has a local child support agency that assists in collecting child support. Look in the phone book, ask around, I'm sure it's not hard to locate. Turn the California orders over to them and they should take it from there. It's all a free service too.

Alabama cannot modify the custody or support orders as long as the dad lives in California. If he moves away, that's different. If travel is a problem, most courts allow you to appear by phone for a nominal charge.

Okay, thanks.

So, what happens if he moves to TX, where we are both originally from? Can I transfer the custody to out there even if I do not live out there? I don't understand why I can't transfer it out here when the father has never done anything for my daughter and isn't even attempting to be a part of her life. It is ridiculous. There has to be a loop hole somewhere that will allow me to transfer everything out here. Thanks for all of your advice.

Okay, so I am confused. I posted another thread a few months ago about child custody. JudyKayTee told me that I needed to go to the family court in AL to file for custody of my daughter. Now, you guys are telling me that I don't need to file out here in AL because custody and everything was granted through a restraining order that is non-viod in CA. I am totally confused on what I need to do now. I know that this has nothing to do with back support, but I am confused on whether child support has even been established since it was granted in the restraining order. Can you please look at my previous post that says Child Custody (I don't know how to provide a link) and please give me advice on what I need to do. Thanks a bunch. I know that this is probably irritating, I just want to make sure that I have all my ducks in a row. Thanks for your patience.

Quote:

Originally Posted by ANB428

Okay, so I am confused. I posted another thread a few months ago about child custody. JudyKayTee told me that I needed to go to the family court in AL to file for custody of my daughter. Now, you guys are telling me that I dont' need to file out here in AL because custody and everything was granted through a restraining order that is non-viod in CA. I am totally confused on what I need to do now. I know that this has nothing to do with back support, but I am confused on whether child support has even been established since it was granted in the restraining order. Can you please look at my previous post that says Child Custody (I don't know how to provide a link) and please give me advice on what I need to do. Thanks a bunch. I know that this is probably irritating, I just want to make sure that I have all my ducks in a row. Thanks for your patience.

Well this points out why you shouldn't start a new thread for the same issue. When Judy gave that advice, you had mentioned nothing about there being an existing custody/support order.

Follow the advice given in this thread since its based more complete info.

But I'm still concerned with this business of the restraining order being all mixed with the custody and support. This really doesn't make sense to me and I would striongly suggest that you have an attorney look over what documents you have. Its possible you are not understanding them correctly.

I answered based on the information you posted at that time. You have now posted different circumstances; therefore, you have received a different answer.

That is one of the problems with a site like this - "we" can only give advice based on what is posted. "We" have absolutely no way of knowing what the circumstances really are.

Quote:

Originally Posted by ANB428

Okay, thanks.

So, what happens if he moves to TX, where we are both originally from? Can I transfer the custody to out there even if I do not live out there? I don't understand why I can't transfer it out here when the father has never done anything for my daughter and isn't even attempting to be a part of her life. It is ridiculous. There has to be a loop hole somewhere that will allow me to transfer everything out here. Thanks for all of your advice.

When it comes to child support and child custody jurisdiction, and one parent moves away from the state that issued the orders with the child, the court that made the orders retains jurisdiction if there is a "stay behind parent". As I said, if the dad continues to reside in CA, you have to go there to modify child support and child custody (unless the dad agreed to the Alabama court picking up child support jurisdiction-- as to child custody, the CA court would have to agree to relinquish jurisdiction to the Alabama court, which the CA court cannot not do under the facts you presented). If the dad moved to Texas, then you could modify the California child custody orders in Alabama (because the child lives there with you), but you'd have to modify the child support order in Texas. That's how it works. And it's not about "transferring the case" to Alabama. It's about modifying the existing CA orders in another state.

The relevant law on child custody jurisdiction is the UCCJEA (Uniform Child Custody Jurisdiction and Enforcement Act). Regarding child support jurisdiction, see UIFSA (the Uniform Interstate Family Support Act). The identical law exists in both California and Alabama on both subjects.

Quote:

Originally Posted by ScottGem

Well this points out why you shouldn't start a new thread for the same issue. When Judy gave that advice, you had mentioned nothing about there being an existing custody/support order.

Follow the advice given in this thread since its based more complete info.

But I'm still concerned with this business of the restraining order being all mixed with the custody and support. This really doesn't make sense to me and I would striongly suggest that you have an attorney look over what documents you have. Its possible you are not understanding them correctly.

Restraining orders are kind of weird in California, I have to admit, because you can get all sorts of orders out of them that you wouldn't expect. When I started doing family law 7 years ago or so I thought it was strange too but here's how it works: if you are married to the person against whom you are seeking a restraining order, you can get everything in the restraining order that you can get in a divorce with the exception of termination of marital status and division or property and debt. You can get child custody/visitation orders, child support orders, property control (including kick-out orders and orders on who pays what debt), attorney fees, and, as of a few years ago, you can even get spousal support! So, we load up restraining orders here with just about everything. Very common.

If you are not married to the person against whom you request a restraining order, you can get everything in the restraining order you can get in a paternity case except establishment of paternity- you can get child custody/visitation orders, child support and attorney fees. That's what's going on with this OP.

It gets kind of confusing because what often happens is you wind up with two different cases in the same courthouse under two different case numbers (if you file the disso first followed by the restraining order they will file the restraining order in the disso under the same case number, but if you first file the restraining order then the disso they will file the disso under a separate case number in which case the judge usually issues his or her own order to consolidate the two cases). You cannot get duplicative orders or conflicting ones, of course, but as you can imagine it can get a little confusing having a restraining order with child custody and support orders and then a disso under a different case number in which both custody and support are also issues. We resolve the confusion typically by consolidation of the cases.

There's no filing fee for a restraining order but a $350 fee to file a paternity case or disso. Maybe that motivates people to try to do it all in a restraining order if they can.

Quote:

Originally Posted by cadillac59

Restraining orders are kind of weird in California, ... you can get everything in the restraining order that you can get in a divorce with the exception of termination of marital status and division or property and debt. ...If you are not married to the person against whom you request a restraining order, you can get everything in the restraining order you can get in a paternity case except establishment of paternity-

Weird. I can understand the same court issuing multiple orders as a result of the same case. I just don't understand bunching them into one order.

But that begs the question the OP is asking. If the Restraining order expires, how does that affect the support and custody orders that are tied to it?

Quote:

Originally Posted by ScottGem

Wierd. I can understand the same court issuing multiple orders as a result of the same case. I just don't understand bunching them into one order.

But that begs the question the OP is asking. If the Restraining order expires, how does that affect the support and custody orders that are tied to it?

One of the things I like about this board, and one of the reasons I participate, is not only that I like helping people specifically with California family law matters, but that occasionally I have to research a topic and thereby learn something myself.

To answer the OP's question of whether her custody/visitation and support orders contained in the restraining order continue after the restraining order expires, the answer is yes. But the reason for this is a bit more complicated than you might suspect.

The relevant law on the duration of restraining orders is contained in California Family Code section 6345, which provides:

6345. (a) In the discretion of the court, the personal conduct,
stay-away, and residence exclusion orders contained in a court order
issued after notice and a hearing under this article may have a
duration of not more than five years, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party. These
orders may be renewed, upon the request of a party, either for five
years or permanently, without a showing of any further abuse since
the issuance of the original order, subject to termination or
modification by further order of the court either on written
stipulation filed with the court or on the motion of a party.
(b) Notwithstanding subdivision (a), the duration of any orders,
other than the protective orders described in subdivision (a), that
are also contained in a court order issued after notice and a hearing
under this article, including, but not limited to, orders for
custody, visitation, support, and disposition of property, shall be
governed by the law relating to those specific subjects.
(c) The failure to state the expiration date on the face of the form
creates an order with a duration of three years from the date of issuance.

So the answer appears to be that, under subdivision (b), if the restraining order contains a duration described in subdivision (a) of up to 5 years, custody/visitation orders and child support orders are governed by whatever other law pertaining to their duration would otherwise apply in any other case in which those orders could be made (child custody/visitation orders terminate, unless modified, at 18; child support orders terminate, unless modified, at 18 and after the child finishes high school, etc).

Now, if a restraining order does not contain a duration, it is presumed to be in effect for a period of three years under subdivision (c). The problem is that subdivision (b) (which states that orders in a restraining order for custody and support are, as far as their duration is concerned, "governed by the law relating to those specific subjects") appears to apply ONLY if there is a duration specified in the order. So, question: are child custody and child support orders in restraining orders with no duration specified (that have a presumed duration of 3 years) impliedly subject to a duration "governed by the law relating to those specific subjects" or do they expire at the 3-year mark? See the problem with the statute? There's a hole in it, so to speak.

Commentators have no answer to this very narrow question. The "bible" on California Family Law states: "It is unclear from the statute whether this presumptive three-year rule [in section 6345(c)] is meant to apply to other orders issued under Fam. Code section 6340, et seq." Hogoboom & King, CAL.PRAC.GUIDE: FAMILY LAW (The Rutter Group 2008) 5:5.3

Since the OP seemed to know that her restraining order has already expired it probably contained a set termination date, in which case, and for the reasons stated, under subdivision (b) her custody and support orders are still in effect.

So, to summarize, and to cut through the legalese for the OP:

If the restraining order had a duration that expired = custody and support orders still in effect.

If the restraining order had no duration specified= we don't have an answer to the question (and that's from two authors so well-recognized and respected that they can be and often are cited before the California Supreme Court).

So, what you are saying Cadillac59 is that the custody and support is still in effect. How long is it in effect? Until she turns 18 or for 5 years? How do you know if the restraining order has a duration?

Quote:

Originally Posted by ANB428

So, what you are saying Cadillac59 is that the custody and support is still in effect. How long is it in effect? Until she turns 18 or for 5 years? How do you know if the restraining order has a duration?

You seem to think that the restraining order expired. The order should have a date on it saying when it expires. If it does and if it has expired, then the custody and support orders are still in effect, yes. The child custody orders last until the child is 18. The child support order is good until the child is 18 and finishes high school (for example, if she finishes high school before turning 18 then it expires on her 18th birthday; if she turns 18 first, it expires on the day she finishes high school but in no event later than her 19th birthday; if she ceases being a full-time high school student between 18 and 19, it expires when she ceases being a full time high school student).

If the restraining order doesn't say when it expires, then it expires three years from when it was issued; however, whether the custody and support orders continue after the three-year mark in that case is unclear under California law.

Do you understand the difference? Just check the restraining order paperwork and look for the language "expires on..........." The odds are about 90%+ that your order has an expiration date (I've never seen a judge neglect to include a termination date), which means that the custody and support orders are still in effect.

The judge told me when the restraining order was granted that it would expire three years from September 8, 2005. Thank you for all of your help!!

Quote:

Originally Posted by ANB428

The judge told me when the restraining order was granted that it would expire three years from September 8, 2005. Thank you for all of your help!!!

Then your custody and support orders are still in effect and will not expire until your daughter turns 18, etc.; of course, they are still subject to modification.

Okay, cool. Thanks again!