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My husband filed for divorce after my kids and I have lived in an other state for 8 months. I understand the divorce can be done but as for the custody of the children, they are now residence of Utah. How do I file to dismiss for lack of jurisdiction?
You may not be able to depending on outstanding circumstances. What has been going on for the last 8 months? Was this a separation?Quote:
Originally Posted by lesliead
Yes we've been separated. I tried to file right after I moved but was told I needed to wait until we gained residancy in Utah so after the 6 months I went back to the lawyer and got everything in order but was served before I filed. I filed the day I was served adding into the papers to get jurisdiction. (however that is done I am uncertain, my lawyer here was taking care of this end but she didn't know what I had to do in Cali)
Also I have a protective order from LA County as the result of a criminal case involving my husband, but our children are not under any of it or mentioned in the protective order. I know if there is any other court ordered thing involving the kids it can waiver the jurisdiction, but it doesn't have any involvement with them.
It can go either way. It is up to a judge to decide. There is also the possibility that since you didn't file before leaving you may have dual residency. And a claim could be made as to why California has jurisdiction. Your filing appears as retaliation. So it may not pass muster of the laws.
I find it hard to believe your Utah lawyer is unaware of the provisions of the UCCJEA which clearly defeats California jurisdiction. I know for a fact that califdadof3 knows all about it, and am somewhat surprised that he didn't mention it.Quote:
Originally Posted by lesliead
"SECTION 201. INITIAL CHILD-CUSTODY JURISDICTION.
(a) Except as otherwise provided in Section 204, a court of this State has jurisdiction to make an initial child-custody determination only if:
(1) this State is the home State of the child on the date of the commencement of the proceeding, or was the home State of the child within six months before the commencement of the proceeding and the child is absent from this State but a parent or person acting as a parent continues to live in this State; ..."
" 'Home State' means the State in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the State in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period."
You said your husband filed in California 8 months after you took the children to Utah. Thus, Utah is the childrens' "home state" and California was not their "home state" within the 6 months before he filed. The California court does not have jurisdiction.
Quote:
Originally Posted by califdadof3
I suspect that what 'dad meant was whether there was a formal, court-approved separation agreement. That could constitute a custody order giving California jurisdictionQuote:
Originally Posted by lesliead
I am aware of all of this as is the lawyer, she told me she would do whatever it is she did here but I needed to file a motion in California then the judges would decide. I have a 30 day window to respond (now 17 days) and cannot afford another lawyer, my question was how do I file a motion to dismiss for lack of jurisdiction? Is there a form, something I should be finding but am not. Do I include it in my response?
If he has a lawyer and you want to file for dismissal then your going to need a good reson that the courts will accept. The problem is that you had an informal separation. So the actual break off point needs to be determined. That is part of the assessment the courts are going to make. Was visitation with the father offered at any point? There are other determining factors that go into it besides the fact that you had moved out.
We signed a postnup in Utah stating visitation. And he's been aware of where the children and I have been the entire time. I think it would be easy to prove the date I left because of the events that happened when I left. In police statements and a protective order case it has the date I left as well as a written statement allowing me to leave the state with the children.
My real question is how I go about requesting the dismissal
I seriously doubt that there is a form.Quote:
Originally Posted by lesliead
File something, with proof of service to your husband (or his attorney if he has one), together with an affidavit showing that the children have been in Utah for 8 months. The technical format is not as important as making this point clear.Quote:
Originally Posted by lesliead
Family Courts are generally less formal. Talk to the court clerk, ask if there is a specific format you need to follow. But generally a letter describing what you are asking will be accpeted.
Quote:
Originally Posted by lesliead
You really need a lawyer to do this. From what your stating here you may not satisfy the law as it pertains to uccjea. That is a question for the courts to answer. Your going to need a solid legal argument as to why it should not be the way it is. Because your filing in Utah is later then the filing in California and according to the rules in uccjea there are significant ties to California still.
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