[jackie73]

Order of support since 2003, $63 week. $3000 in arrears, although I've never brought it up. He has other children to raise. I know they sometimes do w/o, so I don't complain. I'm aware of his right to ask, although I don't think the Court would. My question still stands, legally speaking, can a petition for modification be sought before initial order established? As for your suggestion to modification, I think that might be, but would that be legal? Everything I read pertains to modifying existing orders, nothing mentioning verbal contracts or agreements.

[cdad]

Order of support since 2003, $63 wk., $3000 in arrears, although I've never brought it up. He has other children to raise. I know they sometimes do w/o, so I don't complain. I'm aware of his right to ask, although I don't think the Court would. My question still stands, legally speaking, can a petition for modification be sought before initial order established? As for your suggestion to modification, I think that might be, but would that be legal? Everything I read pertains to modifying existing orders, nothing mentioning verbal contracts or agreements.

If you have a supprt order then there is somewhere an existing order showing you have primary custody or you can't get child support ordered. As far as modifying an order it can be done at almost any time providing there are circumstances to warrant it. So if your talking about being in process for an initial order and during the proceedings a modification is sought. It would be under extrodinary circumstance but yes it can happen. Most likely it would be under emergency order of the courts. Any non-emernency orders would have to take a back seat to those that are occurring in the system at this time until completed.

I know it all sounds confusing but there are rules that have to be followed and within those rules are the checks and balances of our legal and judicial system.

[JudyKayTee]

The other thread refers to "albeit one order of protection granting temporary physical custody of all minor children eight yrs ago" - so it does appear there is a previous order but no indication if it had a time limit on it or was a "forever" order, until modified or challenged.

Maybe these threads should be combined.

https://www.askmehelpdesk.com/family...ml#post1829392

[JudyKayTee]

Order of support since 2003, $63 wk., $3000 in arrears, although I've never brought it up. He has other children to raise. I know they sometimes do w/o, so I don't complain. I'm aware of his right to ask, although I don't think the Court would. My question still stands, legally speaking, can a petition for modification be sought before initial order established? As for your suggestion to modification, I think that might be, but would that be legal? Everything I read pertains to modifying existing orders, nothing mentioning verbal contracts or agreements.

In NYS the only thing that matters when it comes to child support is Court Orders. A Court Order can only be modified by another Court Order.

So - I don't know how this works where you are but in NY you have NO support Order (your other thread aside because I'm not quite sure what the status is) at this moment and therefore an Order is being requested. That request should be met with a counter Petition.

I can't imagine any State modifying an Order before there's an Order.

[cadillac59]

Order of support since 2003, $63 wk., $3000 in arrears, although I've never brought it up. He has other children to raise. I know they sometimes do w/o, so I don't complain. I'm aware of his right to ask, although I don't think the Court would. My question still stands, legally speaking, can a petition for modification be sought before initial order established? As for your suggestion to modification, I think that might be, but would that be legal? Everything I read pertains to modifying existing orders, nothing mentioning verbal contracts or agreements.

There's nothing to modify if there are no existing custody orders, like the others have said. You don't "modify" little informal agreements or past practices between parties. That's nonsense.

What is it you want to do (forget all the pseudo-legal mumbo-jumbo)? And why does the court, in your opinion, not have subject matter jurisdiction (and do you know what subject matter jurisdiction means)?

[cadillac59]

Forgive me if I sound a little facetious (I need to get my 5 mile run in this morning to clear my head) so I'll just throw this out. Feel free to tell me if I'm sounding rude and insensitive this morning and to shut up.

To the OP:

If you were sick you'd go to a doctor to see what is wrong and get help. Right? You wouldn't look for the closest medical school library to go to, go there, and then spend the day pulling medical books off the shelf trying to figure out what was wrong. That would be moronic.

So, likewise when you have a legal problem (and you are not a lawyer) you don't want to run down to the local law library, start pulling legal books off the shelf, or start randomly reading appellate cases in an effort to find an answer to your question. You know, you're going to find something in a book that says "Motion to Dismiss for Lack of Subject Matter Jurisdiction" and what are you going to think? "Gee that sounds good, maybe that will help..I'll use that!" Or in another book you read something about demurrers and think, "ah, that's sounds French...maybe I'll throw that out and I'm sure a judge will be impressed!" Or, "gee, 'forum non conveniens', oh perfect, that's got to be it...I'll use that...oh, and here's a good one: res ipsa loquitur...hum...ah, another good one: res judiciata...perfect, that's gotta be it!"

See that's as dumb as going to the medical school library to find the answer to your headache.

This is a great board and a great way to start getting some good advice. But to get the most out of it, just say what the problem is and await an answer.

There. I got that off my chest!

[Curlyben]

>Threads Merged<

[jackie73]

cadillac 59: Hope you had a nice run( I used to love mine). Here goes; In plain speak, when x and myself separated 2001, I had to obtain an order of protection (temp/60 days) giving me legal right to specific property and ordering him to no contact w/ myself or children. He stayed away(for the most part) and no further action was taken. In 2003 a child support order was granted. Again, nothing concerning custody. He has visited the children regularly since 2002. I have always believed they needed this connection, regardless of his rights.I allowed our 15 yr old to stay one school year (07/08) w father. There are other siblings and they all deserve this time together. He came home at the time agreed upon and everything was cool, until father's oldest daughter let slip that her father had molested her shortly after our break up nine yrs ago. She told no one at the time, and continued to live w/ him until graduation. She has remained close w/ her father despite(or because of, but that's another discussion) the abuse. When I asked if she would testify to this in court, she basically said she would deny all of it and that it had no bearing on their situation. She also pleaded w/ me not to tell, as this would be the family's destruction. I confronted him, anyway. He said he was a"changed man", (although not admitting nor denying) and there was no reason to stop visitation. I immediately stopped visitation, and told him to get a lawyer.Guess he took my advice. Skip ahead nine months:I receive petition to modify. Answer to your actual question: I can't budget what I don't have for an attorney. So I researched. Advice is helpful, but I take this seriously.I researched state civil codes, UCCJEA, IMDMA, PA and anything else having to do w/ my case. I knew from jump this was not an IL case. It's MO. "Subject matter jurisdiction" in this case pertains to federal statutes concerning where this case will be heard, regardless of it's merrit. That, and it does sound pretty!

[JudyKayTee]

So, likewise when you have a legal problem (and you are not a lawyer) you don't want to run down to the local law library, start pulling legal books off the shelf, or start randomly reading appellate cases in an effort to find an answer to your question. You know, you're going to find something in a book that says "Motion to Dismiss for Lack of Subject Matter Jurisdiction" and what are you going to think? "Gee that sounds good, maybe that will help..I'll use that!" Or in another book you read something about demurrers and think, "ah, that's sounds French...maybe I'll throw that out and I'm sure a judge will be impressed!" Or, "gee, 'forum non conveniens', oh perfect, that's got to be it...I'll use that...oh, and here's a good one: res ipsa loquitur...hum...ah, another good one: res judiciata...perfect, that's gotta be it!"

See that's as dumb as going to the medical school library to find the answer to your headache.

This is a great board and a great way to start getting some good advice. But to get the most out of it, just say what the problem is and await an answer.

There. I got that off my chest!

It was time that SOMEBODY said this - I'm out of greenies so here's a pretend one.

I think everyone agrees if you want a binding legal opinion you MUST see an Attorney - and the other problem is that questions here are usually posted with SOMETHING missing, sometimes something important, sometimes not so much - so opinions based on what is posted are useless, anyway.

My teeth clench when I read, "I don't want to pay an Attorney but ..."

[jackie73]

Which is why the advice on this site can be helpful, or not, when it is taken in that context. I was simply seeking advice on where/how to find this info, not a binding contract. I'm new to the internet, but I'm a fast learner and will do the leg work. In have had problems finding certain info relating to specific issues of my case, and when all else fails, I hop on this board. I don't have two nickles to rub, so pro se IS MY ONLY OPTION. I have sought free representation, but not taking these kind of cases right now. So, I understand the context of advice, but I am inclined research this on my own. Sometimes I get stuck on how to. Sorry about your teeth.

[ScottGem]

I would like to appear as competent as possible.

The problem here is you can't appear competent period. The best you can do is a amateur blundering around. The more you try to appear competent the harder you make it on yourself. So your best bet, when going pro se is to keep things as simple as possible. Don't try to draft a legally correct motion or brief. Just a simple statement that you don't believe IL has jurisidcition because...

[cadillac59]

Which is why the advice on this site can be helpful, or not, when it is taken in that context. I was simply seeking advice on where/how to find this info, not a binding contract. I'm new to the internet, but I'm a fast learner and will do the leg work. In have had problems finding certain info relating to specific issues of my case, and when all else fails, I hop on this board. I don't have two nickles to rub, so pro se IS MY ONLY OPTION. I have sought free representation, but not taking these kind of cases right now. So, I understand the context of advice, but I am inclined research this on my own. Sometimes I get stuck on how to. Sorry about your teeth.

If yours is a UCCJEA case, then I will say you sound like you are on the right track challenging subject matter jurisdiction. That's exactly what the problem is if you are right.

It's still rather difficult to see exactly what is going on. Thinking back over the 6 month period before your ex filed his case in Illinois, where had each of the kids lived and with whom? You said they both have lived with you for the last 9 months in Missouri, is that correct? And the dad has lived in Illinois?

I think you also said it's not a divorce (you were never married to the guy) so that makes it a paternity case (or so we call them in California). What contacts, if any, have you had with the State of Illinois? Ever lived there? Were the kids conceived there? Knowing this would help. Where was the restraining order issued? Missouri or Illinois?

As far as giving you step by step instructions on how to file your motion to dismiss for lack of subject matter jurisdition, which is exactly what it is, I doubt anyone here can do that. If you were in California I could help guide you through the process, but not in Illinois. You should file P's and A's (Points and Authorities) with your motion, arguing the UCCJEA, and in many states this is mandatory (in others, like CA, it's optional).

The only thing that comes to mind as to why your ex might be filing for custody "modification" in Illinois would be if the restraining order was initially issued in Illinois and had custody/visitation orders as part of it, and if they, under some argument, were still in effect. In that case Illinois would still have jurisdiction because your ex still (or at least now) lives there. If that is not the case, your ex and his lawyer have completely missed the UCCJEA which, if he really has a lawyer is hard to believe. I may be wrong, but I have a feeling that old restraining order has something to do with all of this...

If you can answer the questions I posed, I'd have a better feel for what is going on.

[jackie73]

Cadillac 59, I think you are following me. Yes, the children were conceived and lived in IL, moved to MO in 2006( with exception of 15 yr old temporary stay for one school yr, 8/07 until 6/08, after which he came back to MO ) So I can't see any "signifigant connection" to IL. The temp order of protection was 6/01, filed in IL, but does not even name him the parent, just restricted his access to us and property for 60 days. The nine yr old has always lived w/me.The 15 yr old has been back 9 months before petition was filed 4/1/09. The way I interprite UCCJEA, home state is MO. I've drafted my motion, but did not include points and authorities, unless that is considered the basis for my motion, in which case I pointed out the reasons jurisdiction does not apply and the related statutes in the motion. I understand I can't possibly cover all the bases as an attorney would, but as Scott Gem pointed out, this is an amateur blundering. I'm hoping the court recognizes this, and doesn't throw it out on technicalities. Either way, I'm doing my best to meet the standards IL courts have for pro se, and I quote," a pro se litigant, under the law, is held to the same standards and duties as an attorney.Pro se litigants are expected to know what the law requires and how to proceed in accordance with applicable statutes and court rules." Again the order of protection does NOT include anything purtaining to child custody, visitation or support. This order was temporary and sought only for protection. As for support, I retained the order through the State of Illinois 2003, but again, this establishes paternity only. Custody would have to be filed separately. You and I are both in question as to "modification". Hope this clears things up. Please let me know your opinion. I know it is not contractual or binding legal advice. Thanks.

[cadillac59]

cadillac 59, I think you are following me. Yes, the children were conceived and lived in IL, moved to MO in 2006( with exception of 15 yr old temporary stay for one school yr, 8/07 til 6/08, after which he came back to MO ) So I can't see any "signifigant connection" to IL. The temp order of protection was 6/01, filed in IL, but does not even name him the parent, just restricted his access to us and property for 60 days. The nine yr old has always lived w/me.The 15 yr old has been back 9 months before petition was filed 4/1/09. The way I interprite UCCJEA, home state is MO. I've drafted my motion, but did not include points and authorities, unless that is considered the basis for my motion, in which case I pointed out the reasons why jurisdiction does not apply and the related statutes in the motion. I understand I can't possibly cover all the bases as an attorney would, but as Scott Gem pointed out, this is an amateur blundering. I'm hoping the court recognizes this, and doesn't throw it out on technicalities. Either way, I'm doing my best to meet the standards IL courts have for pro se, and I quote," a pro se litigant, under the law, is held to the same standards and duties as an attorney.Pro se litigants are expected to know what the law requires and how to proceed in accordance with applicable statutes and court rules." Again the order of protection does NOT include anything purtaining to child custody, visitation or support. This order was temporary and sought only for protection. As for support, I retained the order through the State of Illinois 2003, but again, this establishes paternity only. Custody would have to be filed separately. You and I are both in question as to "modification". Hope this clears things up. Please let me know your opinion. I know it is not contractual or binding legal advice. Thanks.

From what you have said it sounds like you are on the right track. Missouri is the kid's home state for UCCJEA purposes and Illinois cannot make orders on custody. All of this, as I said before, is predicated on there being no existing custody orders. So, be sure you are correct in saying there are no such orders in effect; hypothetically, had Illinois issued a custody order in the past that still was in effect today, Illinois would have custody jurisdiction (called "continuing exclusive jurisdiction" under the UCCJEA) because your ex still lives in Illinois.

I'm not saying the rule is the same in Illinois, but it California it is very common to see custody and visitation orders arising from a restraining order. And, the rule here is, that even when a restraining order expires, the custody and visitation orders continue on and are still in effect (they do NOT expire automatically with the restraining order) until modified by the court, superceded by a judgment or terminate by operation of law (i.e. the kids reaching age 18).

So be sure your order of protection says nothing about custody of the kids and you should be okay.

[jackie73]

Cadillac 59,
Could this be construed as orders? From order of protection: Petitioner (myself) is granted physical care and possession of the minor children, Respondent's(father) visitation is denied. The order was in effect until 7/2001. Do you think this sounds like custody? It's the only thing specifically mentioning the children.

[cadillac59]

cadillac 59,
Could this be construed as orders? From order of protection: Petitioner (myself) is granted physical care and possession of the minor children, Respondent's(father) visitation is denied. The order was in effect until 7/2001. Do you think this sounds like custody? It's the only thing specifically mentioning the children.

Does this sound like custody? Of course it's custody. What else do you think it could possibly be?

You say the restraining order was in effect until 7/2001; but, where does it say the custody order expired with the restraining order? That's what I'd like to know. As I said, had this order come from California, the custody orders would still be in effect and subject to modification-- even if the restraining order expired (by the way, a restraining order with custody orders attached does not state on its face that the custody orders remain in effect after the restraining order expires--you are simply expected to know it). I don't know if Illinois follows the same rule as California. But I wouldn't assume anything.

If the Illinois custody order did not expire with the restraining order, Illinois has continuing exclusive jurisdiction under the UCCJEA and you are going to lose your motion to dismiss. It all turns on whether those custody orders expired. Answer that definitively and you should have the answer to how your motion will be decided.