I'm involved in a custody case in Ohio. I filed my initial paperwork late July of 09. I have been in litigation now for over a year. When I filed the initial motion to gain visitation of my newborn daughter I did not have an address for my ex-girlfriend. I knew she was living with a friend within the same county I resided. After nearly 11 months of litigation she filed a motion to dismiss due to lack of Jurisdiction. This took me by surprise. The Magistrate is going to throw the case out because the address I used on my initial paperwork was her mothers address that was in a different county. This was the only address I had for her at the time because she wouldn't give me her friends address. This was noted on my initial paperwork I filed with the courts. Is the Magistrate correct in her ruling? I feel like the courts have wasted over a year of litigation and I have a great case. I do not want this case to be thrown out.

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Originally Posted by DKA1984

I'm involved in a custody case in Ohio. I filed my initial paperwork late July of 09. I have been in litigation now for over a year. When I filed the initial motion to gain visitation of my newborn daughter I did not have an address for my ex-girlfriend. I knew she was living with a friend within the same county I resided. After nearly 11 months of litigation she filed a motion to dismiss due to lack of Jurisdiction. This took me by surprise. The Magistrate is going to throw the case out because the address I used on my initial paperwork was her mothers address that was in a different county. This was the only address I had for her at the time because she wouldn't give me her friends address. This was noted on my initial paperwork I filed with the courts. Is the Magistrate correct in her ruling? I feel like the courts have wasted over a year of litigation and I have a great case. I do not want this case to be thrown out.

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Federal Rules of Civil Procedure
Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
(b) How to Present Defenses.

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;


If a court does not have personal jurisdiction over a defendant, then the court cannot bind the defendant to an obligation or adjudicate any rights .

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Originally Posted by DKA1984

The Magistrate is going to throw the case out because the address I used on my initial paperwork was her mothers address that was in a different county. This was the only address I had for her at the time because she wouldn't give me her friends address. out... This was noted on my initial paperwork

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Kick out your attorney as incompetent;

GV70... This does not help me. Does the Magistrate have the right to throw this case out just because I served my ex in a different county over a year ago? As stated previously I didn't have an address for my ex so I sent the paperwork to her parents. That is the reason the Magistrate is throwing the case out. Is this enough to throw the case out? I am located in Ohio and there wasn't a hearing in this matter. It was just thrown out. I never got to argue my side.

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Originally Posted by DKA1984

GV70...This does not help me. Does the Magistrate have the right to throw this case out just because I served my ex in a different county over a year ago? As stated previously I didn't have an address for my ex so I sent the paperwork to her parents. That is the reason the Magistrate is throwing the case out. Is this enough to throw the case out?? I am located in Ohio and there wasn't a hearing in this matter. It was just thrown out. I never got to argue my side.

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Read it again - it's in what GV70 posted.

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Originally Posted by DKA1984

GV70...This does not help me. Does the Magistrate have the right to throw this case out just because I served my ex in a different county over a year ago? As stated previously I didn't have an address for my ex so I sent the paperwork to her parents. That is the reason the Magistrate is throwing the case out. Is this enough to throw the case out?? I am located in Ohio and there wasn't a hearing in this matter. It was just thrown out. I never got to argue my side.

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What he said in plain english was when you originally filed that is the time the objection should have appeared to jurisdiction. Not a year later.

Let's put it this way. If the magistrate took this action they felt the law justified it. It would appear from what GV cited that it does.

I'm curious, are you on the birth certificate? Have you been named the legal father?

You will need to come back and prove she lived in your jurisdiction with child at the time. Do you have an attorney ?

I took a paternity test that was court ordered and I'm 100% the child's father. I suppose since this paternity test I have been added to the Birth Certificate. I'm not for sure but I have been paying support for 10 months under a temporary order. I wasn't invited to the hospital when my daughter was born or else I would have been on BC from day one. I have evidence to prove she lived within the county I filed but the Magistrate isn't hearing sides on the matter. So I don't even have a chance to prove anything. Is county enough to throw this case out?

I'm coming into this late but it seems that the Court does NOT have jurisdiction and is relying on the address on the original papers. Were your papers EVER served on her in YOUR County, using an address in YOUR County - in my State that would involve amending and serving papers with/at the actual physical address - ?

I believe GV said it here:

"Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(2) lack of personal jurisdiction;

If a court does not have personal jurisdiction over a defendant, then the court cannot bind the defendant to an obligation or adjudicate any rights ."

The Court rules based on the papers and your papers appear to indicate she is NOT in your County; therefore, the Court does NOT have jurisdiction.

Are you filing and serving amended papers?

I will also say that after I served her she filed an address relocation. The address she then gave the courts was within my county. The only reason I served her at her parents address was because I had no other address for her. We lived together up until a week before my daughter was born and she left. She would not tell me where she was living so I had to go with the only address I knew. A few months later she filed another address relocation to her parents house. To my knowledge during those first few months she was within my county. If this was suppose to be filed by her when the case first started, then why is the Magistrate throwing the case out? This all came about late last week and my attorney will be working on it first thing tomorrow morning. If we file amended papers, doesn't that mean we have to change counties? If that happens I'll lose all litigation for the past year, right?

If I am not mistaken your initial question was,"What are the guidelines to have a case dismissed due to lack of Jurisdiction?"
I think you got the answer.

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Originally Posted by DKA1984

The address she then gave the courts was within my county. The only reason I served her at her parents address was because I had no other address for her.

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I guess you did it pro se.

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Originally Posted by DKA1984

If that happens I'll lose all litigation for the past year, right?

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Ugh! Some custody cases last 18 years... relocation,modifications,allegations, appeals,guardians at litem, and so on...

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Originally Posted by DKA1984

GV70...This does not help me. Does the Magistrate have the right to throw this case out just because I served my ex in a different county over a year ago?

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Short answer-YES.

My suggestion is the get an attorney. My second suggestion is to file an appeal in the superior court to the magistrate's court.

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Originally Posted by JudyKayTee

Read it again - it's in what GV70 posted.

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What GV70 posted is from Rule 12 of the Federal Rules of Civil Procedure. This is not a federal case. It's an Ohio state case. And the magistrate must have hit upon some state jurisdictional statute having to do with either residence or location in the specific county. We are not told what that law may be, so we do not know how it will play out.

1. Ohio has adopted UCCJEA .
2.The Constitution sets out the boundaries of federal law, which consists of constitutional acts of Congress, constitutional treaties ratified by Congress, constitutional regulations promulgated by the executive branch, and case law originating from the federal judiciary.
The Constitution and federal law are the supreme law of the land, thus preempting conflicting state and territorial laws in the fifty U.S. states and in the territories.
3.Ohio adopted procedural codes based on the Federal Rules.

IN RE: E. T.COURT OF APPEALS OF OHIO
"Appellant, Christina Tucker, appeals from the judgment of the Lorain County Court of Common Pleas, Juvenile Division, which dismissed her motion for change of custody on the grounds of improper jurisdiction. We affirm."