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I am pregnant and have a better chance at a better life outside of the state that I live. I am planning a move in the next month to another state and the child of my father is trying to make me stay here? Legally I don't know if that is possible? Let it be known that I am not trying to take away his rights as a father or take this child away from him, I just want a better life for my baby and California isn't doing it. Therefor I have no choice but to move.
If you move before the child is born, he has no control. However, once the child is born, he can file for custody, visitation etc.
Since the child is not born, you may move, the father of course is free to file for custody, file for joint custody of the chlid when it is born. He can attempt to show that you moved only to keep the child from him, but it will be up to him to prove this ( if true)
He does not have a good case but he can of course try. After the child is born, he would have a much better case to stop you.
He can file for his rights prebirth but a determination can only take place after the birth. What that does is lock it into where it is filed and not some out of state court where you plan to move to. Then after being granted rights you can either return with the child or just return the child.
And by moving you ARE interfering with his rights.
To quote a former member and California Law Attorney cadilac59:
Yes, an action to establish paternity as well as rights to custody can be brought before the birth of the child and enforcement of any orders or judgment entered will be stayed until the birth of the child. (Family Code Section 7633).
Family Code Section 7633 provides:
An action under this chapter [the Uniform Parentage Act] may be brought, an order or judgment may be entered before the birth of the child, and enforcement of that order or judgment shall be stayed until the birth of the child.
If the child is born in the state to which you move, jurisdiction under the Uniform Custody Jurisdiciton and Enforcement Act will be in that other state. I can't imagine how filing pre-birth would affect that, because the home state, for the purposes of the UCCJEA would be that state where the child, under 6 months of age, lived for the majority of his or her life. So if the child is born in Nevada, for example, and he files in California 10 minutes after the child is born, California would still have no jurisdiction, because the child has lived the majority (all) of that ten minutes in Nevada.Quote:
Originally Posted by Fr_Chuck
What is it that you don't understand? Under UCCJEA there is an opinion for the basis of making a judgement prebirth. In that way the fathers legal rights are protected by the law.Quote:
Originally Posted by AK lawyer
Here is just part of it-
Ref:
Except in emergency cases, the UCCJA
eliminated a child’s physical presence in a
State as grounds for exercising jurisdiction.
As a result, a court could no longer
base jurisdiction solely on a child’s presence
in the State, nor would a child’s
absence from the State necessarily deprive
the court of jurisdiction. Under the
UCCJA’s extended home State rule, a leftbehind
parent could petition for custody
in the child’s home State even after an
abduction. The UCCJA also required
States to enforce and not modify valid
custody and visitation orders made by
sister States.
http://search.yahoo.com/r/_ylt=A0oG7l70GpdPJl0A3EtXNyoA;_ylu=X3oDMTBybjFrcjV nBHNlYwNzcgRwb3MDNARjb2xvA2FjMgR2dGlkAw--/SIG=123dr7u18/EXP=1335331700/**http%3a//www.ncjrs.gov/pdffiles1/ojjdp/189181.pdf
I will be leaving the state where my baby's father is residing. What are the chances that custody of the child will be granted to him and not me? How would visitation work in either case? Would I have to live close to or in the state that the father lives? I will be in Hawaii and he will be in California.
Is there any type of Order now?
A Judge will decide whether you can leave and whether you can take the baby based on what is in the best interest of the child.
Obviously there will be a distance between you if you move, and that distance will make visitation with the father more difficult and expensive. In these cases the father OFTEN (not always) gets longer visitation less frequently.
What are the chances that he will be granted custody? Without knowing the circumstances it is impossible to say.
And is there a case pending?Quote:
Originally Posted by JudyKayTee
Assuming there is a child custody case in place, the father can ask that you not be allowed to leave the state with the child. If you were allowed to leave, the court may make you liable to pay for his costs of visiting the child, give him longer time with child over holidays and more.
Most likely due to the distance and cost of travel, the judge would just require the child to remain in state..
This is assuming there are court orders in place, this is assuming father has been using his visits.
Do you really think we can answer that with the scanty information you gave us?Quote:
Originally Posted by sebrinad
Sorry, the courts are going to consider a lot more background info that you haven't told us. Some of the issues have been mentioned already, but there are many more.
Bottom line is that the courts are charged with ruling in the best interests of the child. There are many factors that can go into determining what the child's best interests are.
So you can give us more background and we can give you a more educated guess. Things like age of the child. Involvement of the father. Financial security of each. Current custody situation, court orders. Were you married to the father. Family situation. Where is family located? Are you Hawaiian? Does the baby appear to be Hawaiian? Is it a boy or girl? How do you and father get along? And much more may be pertinent.
I don't know. The effect if this very common situation would be to make all custodial parents prisoners. They, in effect. Cannot leave the state for 18 years.Quote:
Originally Posted by Fr_Chuck
There is a federal constutional right to travel. So the court has to weigh this right against the right of the father to visitation.
Forgive me for my "Scanty" information. This is a first for me and I am completely blind. There are no types of orders or case in the situation right now. The child is unborn and is not due for a while. I am leaving the state to better my life, since I am having a very hard time doing so here in California. I cannot afford to live here. The father has visited a handful of times since I have been pregnant. He is very controlling now about the child and what I can listen to and what I will clothe my child in. The way he tries to be overly controlling as early as this concerns me. Last I knew, he was a constant drinker. He is a full time student and does have a decent income. He lives at home with his mother. I also live at home with mine until I move. Then I will be living with my father, but by the time my child is born we will have our own home. I will have the support and assistance of my father and other family. I am not certain as to what information I am leaving out- that would be considered in a case. I apologize and thank you all for your help
What I don't understand is how what you quoted suggests that the child's home state is not the state in which he or she is born.Quote:
Originally Posted by califdadof3
This question has already been asked and answered in the other thread. Will a moderator please merge them?
As explained there, OP can move to Hawaii and if she does so before the child is born, custody will have to be litigated in Hawaii.
Leave before the child is born - the father cannot stop you.
Threads merged.
First, in your second thread, you didn't indicate the child was not yet born. A VERY key piece of info. But your original question was answered in the initial thread. The second thread just confused matters.
What I quoted and why I quoted it is because of your argument of the home state rule taking precident and preventing a prebirth filing.Quote:
Originally Posted by AK lawyer
In the quote it shows that the home state rule has been eliminated The rules are different then what your thinking is. That is how it can be allowed and has been allowed in the past. It still follows the basic rules and guidelines for uniform custody. The quote is about jurisdiction. And why if California makes a motion then it can and will be upheld by wherever the child is born.
Not as I read the quote you made.Quote:
Originally Posted by califdadof3
"Except in emergency cases, the UCCJA
eliminated a child's physical presence in a
State as grounds for exercising jurisdiction.
As a result, a court could no longer
base jurisdiction solely on a child's presence
in the State, nor would a child's
absence from the State necessarily deprive
the court of jurisdiction. Under the
UCCJA's extended home State rule, a leftbehind
parent could petition for custody
in the child's home State even after an
abduction. The UCCJA also required
States to enforce and not modify valid
custody and visitation orders made by
sister States."
Has California modified it's version of the uniform act?
Is there any California case law which supports your position?
The quote seems to be taken out-of-context. It doesn't suggest that the definition of a child's home state has been altered.
In short, you might want to read your quote again. I simply don't see what you seem to think it says.
No, the child's presence is not necessary for the original jurisdiction state to exercise jurisdiction. Never has been, as far as I know, under the UCCJEA. This language is talking about how the UCCJEA changed pre-UCCJEA law.
No, and this has been going on for years now. The original quote from Cadilac 59 supports it. That person was a family law attorney practicing current law in California.Quote:
Originally Posted by AK lawyer
The next quote is from the justice dept. And I highlightd in red the parts that pertain to how jurisdiction is held.
The effect and intent is to make a preliminary finding to be final upon birth. It protects both parental rights and those of the child. Consistent with current law theory. That is why it has been upheld. The essence of it is the intent of birth and the abduction of a child.
Here is yet another example of protection in a form of the unborn. Ripped out of today's news.
http://www.timesfreepress.com/news/2...-death-embryo/
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