I have two beautiful kids that are living with my ex out of state. We have a child support order in effect in the state of Arizona where her and I used to reside. She moved out of state in August of 2008 this year. I have relocated to NV for work but still pay for child support in AZ. We have never established custody and I believe that in Arizona niether parent is awarded custody until they go to court for it. I want to know if I can still file for visitation or custody since she has moved or do I have to file it in the state of Texas where she has moved to. Niether of us are residents yet of the states we moved to. Legally can she move with the children since niether of us have custody? Can I have it ordered that she move back to Az? Where I am closer and the children's immediate family are? What are my rights!?

And what evil is in your heart to make her move back to AZ if you are living in NV?

First if you are on the birth certificate you both have custody, if you are not on the birth certificate she has custody until you go to court and fight it.

You will need to file in the state where she is now living, if you don't have one in place already.

And no, you can not make her move back, why don't you move back ? If you were living in the same area and was visiting on a regular basis, you can ask for her not to move ( before she moves)

YWhy did you not ask for visits when you first separated ?

I love these child custody jurisdiction questions (you know the ones where mom, the dad and the kid lived in state A and got a custody and support order but dad moved to state B and now mom and the kid have moved to state C and dad wants to modify the custody order from state A and mom wants to modify the support order from state A, and they want to know which state can they do it in, and so on). These are like trying to solve a rubic's cube- the judges half the time don't understand the law on the subject and the attorneys involved only barely understand it themselves sometimes and some, who are new to the field have never even heard of it (which is scary). So these are fun cases (I've represented a few people myself in these kinds of cases and have gone around and around over this with other attorneys and even judges-- for some reason everyone seems to be baffled by this stuff).

So here it goes. Child custody jurisdiction is governed by a uniform act that all but three states have adopted (those states are Mass. Indiana and I think South Carolina) called the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The three states that have yet to adopt it are set to do so next year I think and have an older version of the same act called th UCCJA, which is a little different.

Since neither you nor the mom or child live in Arizona any longer, Arizona no longer has child custody jurisdiction but instead Texas does. So any action you file for custody has to be in Texas ( this is a mandatory law that must be followed- you cannot pick the state you want to file in). Your residency or that of your ex is irrelevant under the UCCJEA so forget about that. All we care about is where the child resides ("legal residency" means nothing).

The AZ support order is still in effect; however you could modify it if you want to. So check out what support would be for you in Texas and if it would be lower file a motion to modify in Texas (if your ex wanted to modify the support order she'd have to go to Nevada to do it by the way and could not, absent your consent, do it in Texas). You cannot modify the support order in Nevada yourself unless your ex consented to it since I assume she has no contacts with Nevada. Child support jurisdiction is governed also by a uniform act that all states have adopted called the Uniform Interstate Family Support Act (UIFSA). It's similar to the UCCJEA but somewhat different the way it works.

Just because you don't have custody orders does not mean you do not have custody rights. As parents you share these equally until a court defines the parameters of your custodial arrangement and says when the kid is with you and when with her.

Yes, your ex may move with the child out of state (of course she cannot commit parental kidnapping which would involve hiding the child from you as part of her move). And no, of course you cannot order her to move back to AZ! Come on! You can't tell people where to live, but you can ask for custody of the child yourself. So give that a try if you want.

Those are your rights as I see it.

Let me add one other thing to what I said. Here's a great example of why these kinds of cases are sort of fun.

You said you have "relocated" to Nevada for work. Fine. But where do you "reside"? In other words, do you consider Arizona your place of residence, is your stay in Nevada only temporary? Do you intend to return to Arizona when your work is over? Do you pay state taxes in Arizona, have an Arizona drivers license... is Arizona in essence what we call your "domicile" ? If this is so then an argument can be made that under the UCCJEA custody jurisdiction is still in Arizona and this would allow you to file in for custody there but only if the child and mom have been in Texas for less than 6 months . If it's been more than 6 months since the mom and child left you have to go to Texas to get custody orders (this assumes you have never gotten a custody order of any kind in Arizona, as you said, because if you had there wouldn't be a 6 month time limit on this and Arizona would have what the UCCJEA calls continuing exclusive jurisdiction (CEJ)--so do you really not have a custody order of any kind from Arizona?).

One final remark. In reviewing your post I see that you mentioned that your ex and child moved to Texas in August of this year. Since that's only been 3 months, Arizona may still have custody jurisdiction but only if you can say you still "reside" in Arizona. So it all turns on why you are in Nevada, for how long and all the other things I mentioned before. On the other hand if you ex wanted to fight about it, she could argue that since you now "reside" in Nevada custody jurisdiction belongs solely in Texas. The official comments to the UCCJEA say that "residence" is not to be understood as technical "domicle" (domicile means where you live and where you intend to remain more or less permanently) but those are only comments and case law may and sometimes does vary a bit in interpreting the Act. When I said earlier that residency was irrelevant under the Act I meant it was irrelevant in certain respects (such as in establishing what we call the child's "home state" under the UCCJEA, which has importance is fixing custody jurisdiction in some instances). Residency (but not necessarily a state definition of "legal residency" )does have relevance in what we call continuing exclusive jurisdiction (CEJ) under the UCCJEA.

First, as noted, Custody already exists. I don't know how a support order could be made without establishing custody since support is made to the CUSTODIAL parent.

Second, while custody has therfore been established, it would seem no visitation order was setup. If one was setup, then she could not have moved without getting permission.

There is no way to get her to move back. Its too late. But there is no reason you still can't apply (in Texas) for a visitation schedule.

It all seems to get back to the question of where you reside: if your stay in NV is only temporary and you haven't made a permanent move, then I say you could give filing for custody in AZ a shot. Your ex might not even think to oppose it, it's probably a more convenient forum for you, and you already have a support case there anyway. The worst case scenario would be she would object to jurisdiction on the basis that you now live in NV and would claim that the case belongs in TX. I think I would file in AZ myself unless you think your stay in NV is more or less indefinite.

Thank you for all your responses it has really helped answer a lot of my questions. To answer some of yours I just moved up here and started my job about 3 weeks ago. I still have an AZ state Id have not been able to get an ID in Nevada because of a lost birth certificate. Also I would like to add that child support and child custody are 2 separate things. When she filed for child support they did not establish custody in AZ you have to file seperatly for that they do not go hand in hand. I am not planning to move back to AZ if this job works out and it is the only reason I moved out of AZ besides the fact the my children were no longer residing there. I was mistaken in thinking that she would have to move back, I was reading some other posts on parents moving who already have support orders in effect and thought it might apply to me as well. I assumed that since the child support order was in effect in AZ that custody would have to be filed in the state the child support order was in effect at. She hasn't notified the state of AZ of her move and hasn't filed for a supprt order yet in Texas. I would like to also note if she had stayed in the town that we were both living in she would only be 2 hours away from me with the kids as apposed to states away from me with them. In hind sight I suppose filing for custody sooner would have soved this problem. Any other comments on this subject will be appreciated.

With what you said about your reason for living in Nevada it sounds like your stay there is more or less permanent. That being so, it would appear that Texas would have custody jurisdiction. Of course if you wait until your child has been away more than 6 months continuously in Texas then it will absolutely be a Texas case (on custody only) no matter what you might argue about your Arizona residence.

If you want to you can modify support in Texas but she cannot, not without your consent. She has to come to Nevada to modify and the Nevada child support guideline will apply. Don't let her modify support in Texas unless you are sure you will get a better deal over there on the numbers. Texas has no jurisdiction over you unless you consent to it. If you want the UIFSA citation on it I'll be glad to give it to you.

I think you are mixing up custody and visitation. Visitation and support ARE separate issues and a support order doesn't involve a visitation order or vice versa.

But Custody is integral to support because support is paid to the custodial parent. Therefore, without some assignment of physical custody, how can you know who gets paid or who pays? The support order may not make a specific declaration of custody but it has to be at least implied.

For the court to have decided that you owe child support someone must have decided that mom has "custody" in a general sense which, at a minimum would mean she is what I like to call the "high-time parent." This gives her at least the right to file head of household and keep the dependency exemption on her tax return. But, in Calif. At least I know it is very possible to get a support order without a custody/visitation order (I've seen them all the time). If you can agree on some sort of time percentage the kid is with one parent versus the other that is all you need (where the kid spends his/her time in the absence of a formal order). DCSS (Department of Child Support Services) gets child support orders all the time on dad's who rarely see their kids and have no orders on custody or visitation. They do it to collect welfare reimbursement and child support for a mom. And DCSS has no jurisdiction to even obtain a custody order for a mom- they are totally out of the picture when it comes to that.

So now that I know that I must file to the state of Texas for visitaion and custody what do I do next? Do I have to hire an attorney? DO I physically go down to the court. I have contacted someone locally in Las Vegas and they told me for a fee of $150.00 that they will file for me and do all the paperwork and that I wouldn't have to evne go to Texas. Sounds too good to be true but is it possible? What do I request for parenting time that is fair. I will tell you what I would like, I want joint physical and legal custody, and because of the distance I want her to either meet me half way to pick up the kids or split the cost. Is that reasonable? I am thinking too that since they are so far away is it too much to ask for them for every other year or 6 months split ? Or does that sound like wishful thinking. What about when my son starts school I can't have him for 6 months here and then 6 months there where would the stability be in that kind of arrangement? Basically I want to have equal time as she does? I don't want to split up my kids either because they have bonded already it wouldn't be fair to them. I figure what ever order comes in place, that it would also be fair to have it in place until the kids are old enough to change it if they want too. What is reasonable to ask for considering I don't have them now and considering the distance. I am telling you that seeing them for a week or two out of the year just isn't enough for me. I want to be a part of their lives just as she is and I don't see why as their father I can't have that? What do I do?

So now that I know that I must file to the state of Texas for visitaion and custody what do I do next? As a Resident of Las Vegas,Nv Do I have to hire an attorney here or in Texas where my children now reside? DO I physically go down to the court. I have contacted someone locally in Las Vegas and they told me for a fee of $150.00 that they will file for me and do all the paperwork and that I wouldn't have to evne go to Texas. Sounds too good to be true but is it possible? What do I request for parenting time that is fair. I will tell you what I would like, I want joint physical and legal custody, and because of the distance I want her to either meet me half way to pick up the kids or split the cost. Is that reasonable? I am thinking too that since they are so far away is it too much to ask for them for every other year or 6 months split ? Or does that sound like wishful thinking. What about when my son starts school I can't have him for 6 months here and then 6 months there where would the stability be in that kind of arrangement? Basically I want to have equal time as she does? I don't want to split up my kids either because they have bonded already it wouldn't be fair to them. I figure what ever order comes in place, that it would also be fair to have it in place until the kids are old enough to change it if they want too. What is reasonable to ask for considering I don't have them now and considering the distance. I am telling you that seeing them for a week or two out of the year just isn't enough for me. I want to be a part of their lives just as she is and I don't see why as their father I can't have that? What do I do?

How long have the kids lived in Texas with their mom? And who told you you have to file in Texas for custody/visitation? It may or may not be right. It all depends on the facts.

Were you never married to the mom? Divorced? If divorced, when? Where?

She moved in August of this year and at the end of this month it will be 6 months. I wasn't told I had to file in Texas unless it has been more than 6 months and that deadline is coming up here soon. We were never married and have a child support order in AZ. I have posted a thread about this previously but now I want to know what is the best step for me to take and in which direction. I have found locally people who do not charge retainer fees and will file all the paperwork for you but is that legitimate?

I merged your threads. Please don't start new threads for the same issue.

Quote:

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Originally Posted by jmartinez808

She moved in August of this year and at the end of this month it will be 6 months. I wasn't told I had to file in texas unless it has been more than 6 months and that deadline is coming up here soon. We were never married and have a child support order in AZ. I have posted a thread about this previously but now I want to know what is the best step for me to take and in which direction. I have found locally people who do not charge retainer fees and will file all the paperwork for you but is that legitimate?

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I was confused because you started a new thread. Now I recall your question.

Nevada has no jurisdiction over this case. None. So don't waste a penny trying to file in Las Vegas because the Nevada court will throw the case out. The rule in this respect is so firm that even if you and the mom both agreed to allow the Nevada court to hear the case on child custody, it STILL COULD NOT hear it and WOULD NOT have jurisdiction! Believe me on this one. The rule is a little different on child support. If you and the mom agreed to allow Nevada to modify the child support order and filed the agreement in the Arizona case, then Nevada could modify the child support order. But without an agreement from the mom to modify child support in Nevada you would have to do that also in Texas (alternatively you could also agree to allow Arizona to retain jurisdiction but you would have to file an agreement in the Arizona case to do that as well).

Although there might have been an argument allowing you to file for custody in Arizona, it probably wouldn't be worth the trouble and there is a good chance of losing unless you can say you still reside in Arizona (you've said a few times that you now reside in Nevada). So I think you have to file in Texas. (btw, I don't see how you calculate six months from August-- isn't that closer to 5 months on the high end? This is December and July 31 to Dec 31 is 5 months)

I think your requests sound reasonable. Ask to share transportion costs equally, ask for all of the summers (8-10 weeks), one week at Christmas, one at Easter. That should get you about a 30% timeshare or so. You aren't going to get 6 months on and 6 months off is the kids are school age.

How do I start a new question/thread for the same question?

If this is the right way then here goes... I filed for visiation and in the state of AZ. I filed in January on the 16th and she received it on the 20th of that month but I didn't get a signature confirmation from her, her cousin signed for the papers. So I have been talking to her on the phone and she says she isn't going to waste her money in responding because we both agree to the joint custody so my problem is that I have no proof she herself got the papers,other than recording our phone conversations. Is that illegal? Can I use it in court ? And what will happen if she doesn't respond and they have no proof that she got it?

Why start a new thread for an existing issue? You want to keep the thread together for background.

You need to find out if AZ is a single party stte for recording. A single party state means a recording is legal as long as one of the parties is aware.

Does she live with her cousin? Was the summons delivered and signed for at her address of residence? If so, then her cousin's signature should be enough.

What concerns you? If she doesn't respond to the summons, the judge will rule in your favor by default.