Ask Me Help Desk - Change of jurisdiction

I have a question that I hoping you can help me with or point me in the correct direction. My daughter and I moved here from NH almost two years ago, we have a custody and child support order out of the courts in NH. The courts in NH decided that I could move with my daughter to AZ but that we have to pay half the transportation costs, the court also reduced the child support order to 200.00 a month because the dad said he was unemployed. With the slow down in our economy my income has reduced greatly so I questioned my attorney about modifing my child support since dad is working now. My previous attorney in NH informed me that I could file a foreign judgment here in AZ and be able to file a motion to modify my child support order. It is a hardship for me to fly to NH from AZ for this. I have already had to fly out there twice this past year because of fraudulent petitions made by the dad that got thrown out in court. I no longer can afford to fly to NH. So, I followed the advice of my previous attorney in NH and filed the foreign judgment as well as opened a child support case with the child support department here in AZ in February. We have a hearing for next Tuesday May 5th here in AZ for the modification however the father who resides in NH filed a petition in NH about eleven days ago asking to affirm continuing jurisdiction. He also asked for the court date to be the same day as the hearing here. I filed an objection in the court in NH and a motion for telephonic conference if my objection is not granted. I have been trying to understand all the information in the UNIFORM INTERSTATE FAMILY SUPPORT ACT and in the FULL FAITH AND CREDIT ACT. Unfortunately, I am unable to completely understand all this information. So my question is, do I have the right to file for the motion to modify child support here in AZ? Does the foreign judgment allow me to file this motion. The court here said I could but the fathers papers from NH says I can't. Have I gone in the correct direction with filing the foreign judgment? Is this considered a jurisdiction change?

If the Father still lives in NH the NH court has jurisdiction and unless the father allows the change, no you should not be allowed to file for any motions in your court unless they are emergancy ones.

You I will assume wanted the move, so it is not your ex's fault and he should not have to travel to you for court, you have to travel to him since you are responsible for the move.

I am sorry but to be blunt, very blunt, you wanted the move for some reason, was allowed by the court, so now you have to follow the results of your choice.

The NH court order will stand over the other since it is the original court and the father still lives in that jurisdiction.

NH has continuing exclusive jurisdiction over BOTH child custody and child support and AZ has NO jurisdiction (See The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) regarding custody jurisdiction and the Uniform Interstate Family Support Act (UIFSA) regarding child support jurisdiction). Simply put, when there is a stay-behind parent (one who continues to reside in the state that issued the original orders) jurisdiction remains in the state that issued the orders.

Your motion to modify in AZ is a complete waste of time and is frivolous.

Google the UCCJEA and UIFSA or take a look at wikipedia's article on each of these Acts if you want to find out how they work.

The only way child support jurisdiction could change to AZ would be for your ex to agree to it (which he won't); the only way for child custody jurisdiction to change to AZ would be for the NH court to agree to it (which it won't either). That's it. It's really simple.

I'm so confused... I just spoke with an attorney that handles famliy law and she states that jursidiction follows the child. However, I have been reading those acts and I don't see that information anywhere. :(

Normally jurisidiction does follow the child, except where the NCP remains in the jurisdiction of the original court.

Quote:

Originally Posted by gizmoegirl

I'm so confused...I just spoke with an attorney that handles famliy law and she states that jursidiction follows the child. However, I have been reading those acts and I don't see that information anywhere. :(

I'm a family law attorney and a Certified Family Law Specialist in California and I know what I am talking about.

The attorney that told you that "jurisdiction follows the child" is wrong. What Scottgem wrote was correct: Where there is a stay-behind parent jurisdiction stays behind as well. If your ex had moved away from NH things might be different. Had that happened you probably could modify child custody in AZ but you'd still have to modify child support in the state your ex moved to. But that's all hypothetical. NH has "continuing exclusive jurisdiction" over these issues as you described your case. It's as simple as that.

The UCCJEA and UIFSA are not the easiest read for non-lawyers. I'll admit that. But what I said (and Scottgem) about your case was correct.

OK so I got clarification today. The reason the attorney said AZ has jursidicition is because I filed a foreign judgement in AZ and the father did not object to it. Therefore, that gives AZ jurisdicition over the case. Also, AZ is the home state of the child.

Thank you all for giving me your insight, it is much appreciated!!

I have ratained an attorney for the hearing.:)

Quote:

Originally Posted by gizmoegirl

OK so I got clarification today. The reason the attorney said AZ has jursidicition is because i filed a foreign judgement in AZ and the father did not object to it. Therefore, that gives AZ jurisdicition over the case. Also, AZ is the home state of the child.

Thank you all for giving me your insight, it is much appreciated!!!

I have ratained an attorney for the hearing.:)

Filing a foreign judgment in AZ has nothing to do with the court's jurisdiction under the UCCJEA or UIFSA and does not confer jurisdiction on the AZ court. The father's non-objection to such a filing is irrelevant under both Acts. To say that AZ has become the child's home state is also irrelevant and does not serve to defeat UCCJEA or UIFSA continuing exclusive jurisdiction under either Act.

Again, AZ DOES NOT have jurisdiction over this case.

Here's a little example of how the UCCJEA works:

"Exclusive, continuing jurisdiction. The UCCJEA adopted a rule of exclusive, continuing jurisdiction similar to that in the PKPA.57 Under the UCCJEA, an original decree court that exercised jurisdiction consistent with the Act has exclusive, continuing jurisdiction to modify its decree until one of the following occurs:
A. The original decree court loses significant connection jurisdiction.
B. The child, the child's parents, and any person acting as the child's parent no
Longer live in the State.

Only the decree State may determine whether it has significant connection jurisdiction. That is, a sister State's court may not substitute its judgment on this
Issue for that of the decree State's court. By contrast, either State court may determine that all parties identified in the statute have left the State.

Jurisdiction to modify determination.If an original decree State has exclusive, continuing jurisdiction, no other State may modify the decree State's custody order—even if the child moves and establishes a new home State. (In such a scenario, the noncustodial parent usually remains in the original decree State.) A court in the child's new home State (or any other State) cannot modify the initial decree unless the original decree State loses exclusive, continuing jurisdiction or declines to exercise it on inconvenient forum grounds, and then only if the child's new home State has jurisdiction under the UCCJEA. These requirements are intended to eliminate the practice under the UCCJA in which a child's original home State and new home State both assert modification jurisdiction, which is likely to result in conflicting custody orders and confusion as to which order takes precedence.

Conflicting orders have also caused many law enforcement officers to refuse help in enforcing an order because of uncertainty as to its validity.
Example. Following proceedings in Kansas (the child's home State), the child's father is granted custody. The mother moves to Oklahoma, where the child spends extended visits over summers and holidays. Two years later, when the child reaches school age, the mother refuses to return the child to Kansas at the end of the summer and enrolls the child in an elementary school in Oklahoma. She also files an action in Oklahoma to modify the Kansas order,
Seeking full custody of the child. The father challenges the Oklahoma court's jurisdiction and moves to dismiss the suit on grounds that Kansas has exclusive,
Continuing jurisdiction. He also seeks return of the child pursuant to the Kansas
Order. The father prevails based on the UCCJEA and the PKPA. Both statutes
Require enforcement of valid orders, and the validity of the Kansas order was uncontested. Oklahoma could not modify the Kansas order because Kansas had
Exclusive modification jurisdiction.

Declining Jurisdiction Under the UCCJEA, a court with initial jurisdiction; exclusive, continuing jurisdiction; or modification jurisdiction may decline to exercise jurisdiction on two grounds: inconvenient forum and unjustifiable conduct.
Inconvenient forum. Under section 207 of the UCCJEA, a court may, after taking into account specified factors, determine that another State is better able to decide custody. These factors include whether domestic violence has occurred and, if so, which State can best protect the parties and child; how long the child has lived out of State; where the evidence is located; and which court is most familiar with the case. Example. In the Kansas-Oklahoma example described above, the mother could petition the Kansas court to decline jurisdiction
On grounds of inconvenient forum. However, the decision would be at the
Court's discretion, and the fact that the mother wrongfully withheld the child in
Oklahoma might weigh heavily in the court's decision."

US Department of Justice, Juvenile Justice Bulletin, December 2001

There's a great deal of information about interstate jurisdictional challenges on the internet and you would be well -advised, and your attorney as well, to study this material carefully. As you can see there is NO exception to any of these rules for people who "register" a foreign judgment in their state or for non-custodial parents who fail to "object" to such a registration.

Incidentally, this research took me about 3 minutes and fully answers your questions.

Quote:

Originally Posted by gizmoegirl

I'm so confused...I just spoke with an attorney that handles famliy law and she states that jursidiction follows the child. However, I have been reading those acts and I don't see that information anywhere. :(

Your attorney was not right.It was true 10 years ago but it is not true now.

Okay, Even I'm confused. I am going through the same "type" of situation. My son was born in CA, but I moved to Oregon with the courts permission in 2005. He has resided in Oregon for 3/4 of his life. To my understanding I can file papers in Oregon as long as I tell them original jurisdiction was in CA and CA can agree to let go of the jurisdiction and allow Oregon to take over jurisdiction even if the father still resides in CA. It is supposed to be based on the best interest of the child is it not? It is not in the best interest for me to pull my children out of school and drag them to California for days at a time because he thinks its funny to put me through hell. He has taken me to court at least once a year, and pushed to a hearing, even with no substantial reason and never winning his case. He does this to cause me disruption and agony. Why wouldn't California agree to change jurisdiction so that the children can stay in school, be at home and comfortable while these proceedings are going on? It makes no sense for CA to maintain Jurisdiction when everything about my son is in the state of Oregon and when OR is spending their money to support my sons education etc... Why should CA get to make the choices for my child. The judge in CA denied his father custody 3 times now. Since we are on the subject. How do you file to formally request a change of Jurisdiction. Worse case scenario the judge says no. How do you ask though?

There has to be a way to file a paper to just "ASK" the judge to change jurisdiction and give you reasons you feel that would be best.