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klozzer · Jan 26, 2011, 02:02 PM

I have a typed document signed by my stbx and myself and notorized stating that I am the custodial parent. My court date is in a month. I filed for a default since she never responded. My question is, if I am the custodial parent with joint custody, can she take my boys away from me if she wants too? Please answer because I am so stressed by this question, I am not able to sleep at night.

cdad · Jan 26, 2011, 02:50 PM

She can do what is allowed by the court orders. If it says joint physical custody then that is how it stands until changed.

What are you trying to change it to at your hearing ?

klozzer · Jan 26, 2011, 05:52 PM

We have joint physical custody with me being the custodial parent. They live in my home and she has visitation. That's what we have written in the original agreement. I don't want to change anything. I just want to make sure that when the judge signs off on the divorce with me being custodial parent, she won't be able to take my boys away from me without going back to court.

Fr_Chuck · Jan 26, 2011, 06:07 PM

A typed document signed by the two of you and notorized means nothing at all unless it was a court motion and signed off by the judge.

You may as well spit on your hand and shook hands.

What matters is what motions is filed in court and what custody order is signed by the judge.

klozzer · Jan 26, 2011, 08:19 PM

So on March 8 when I go to court and the judge signs off on me being custodial parent, she can't take them away unless she takes me to court. Bare in mind she did not respond to either affidavits. It will be just me and the judge. Correct?

cdad · Jan 27, 2011, 04:41 AM

Yes that's correct. The order stands until changed. She would have to take you back to court for a modification to get it changed.

ScottGem · Jan 27, 2011, 06:18 AM

Lets make this clear. Once a court signs off that you are the custodial parent, then she can't LEGALLY take the children and have them live with her. Until a court does sign off, then you are equal in custody. despite any written agreement between you.

If she has visitation and she refuses to return the children, then you call the police show them your custody order and she will have to release them.

klozzer · Jan 27, 2011, 10:35 AM

Thank you!! You have put my mind at ease. Now I can sleep!!

klozzer · Jan 27, 2011, 10:36 AM

Thank you!! You have put my mind at ease. Now I can sleep!! I don't forsee a problem getting that signed off on being that she did not even respond to both affidavits. Am I correct in that assumption as well?

klozzer · Jan 27, 2011, 10:36 AM

I don't forsee a problem getting that signed off on being that she did not even respond to both affidavits. Am I correct in that assumption as well?

this8384 · Jan 27, 2011, 10:58 AM

Originally Posted by klozzer

I don't forsee a problem getting that signed off on being that she did not even respond to both affidavits. Am I correct in that assumption as well?

You're jumping the gun a bit here. Until the order is finalized through the court, nothing is set in stone. Just because she ignored the other affidavits doesn't mean she's not going to change her mind.

Try not to work yourself up; odds are she'll go along with the agreement but don't count your chickens until they're hatched.

klozzer · Jan 27, 2011, 11:18 AM

She is not going to answer. She has already told me that. She wants this over as much as I do. So, if it's just me and the judge, chances are it will get signed off as is. Correct?

this8384 · Jan 27, 2011, 11:21 AM

Originally Posted by klozzer

She is not going to answer. She has already told me that. She wants this over as much as I do. So, if it's just me and the judge, chances are it will get signed off as is. Correct?

As I said earlier, odds are you'll be just fine. If she doesn't show up, you'll skate through no problem.

I am just trying to alert you to the fact that people often change their mind once it comes down to it - especially in family court. Personally, I'd say you have a 99% chance that there's nothing to worry about. But people start talking and getting ideas, and suddenly they don't want to do what's best for their kids - they just don't want to pay child support, want more visitation, etc.

As it is right now, it sounds like you're the children's primary caregiver and have been for awhile. Even if she decided she didn't want to agree, odds are things will work out in your favor anyway.

klozzer · Jan 27, 2011, 11:34 AM

Thank you very much for your support. I feel tons better. I don't know what I would do without my boys. I have already denied child support in the original decree. I don't want it. She's not even working. Thank you again!!

this8384 · Jan 27, 2011, 11:39 AM

Originally Posted by klozzer

Thank you very much for your support. I feel tons better. I don't know what I would do without my boys. I have already denied child support in the original decree. I don't want it. She's not even working. Thank you again!!!!!

Not a problem; feel free to drop by and let us know how it works out for you :) I hope for you and your boys sake, it goes positively and you can move on with your lives.

cdad · Jan 27, 2011, 04:17 PM

Comment on this8384's post

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She is not going to answer. She has already told me that. She wants this over as much as I do. So, if it's just me and the judge, chances are it will get signed off as is. Correct?

Sorry this is not correct. The judge may add to the waiting period and allow the other party to prove up and for you to prove up also that all the rules were followed and the other party properly served. If she doesn't show it can take many trips to court.

Since she agrees then she should show up. And stand there and nod.

ScottGem · Jan 27, 2011, 06:14 PM

First please don't use the Comments feature for follow-up. Use the answer options instead. There is no need to repeat the same thing in multiple comments.

There are two possibilities here. Either the judge will postpone the case giving the mother a chance to show up. Or he will accept the agreement. Its totally up to the judge and there is no predicting what a judge will do. My guess is he will accept the agreement rather then cost the state more for a new trial.

klozzer · Jan 28, 2011, 12:16 PM

The original affidavit I served her at the court house. She was told she had 20 calender days to respond. No response. When I filed the application for default, that gave her an additional 10 working days to respond. That letter was sent First class mail and I have the receipt from the Post Office showing the date it was mailed. After the 10 working days passed, I went to the courthouse to see if she responded and the answer was no. I then filed for a court date. I was given a checklist of what to bring. I asked the clerk if she did not respond to the 2nd notice then she is giving up her rights to the trial and it would be just me and the judge. Bare in mind, she signed the original decree, she signed the custody agreement and she signed the parenting plan. She has no intentions on responding or coming to court. I hope I am safe to assume the judge will go ahead with what I/we have requested since we are in agreement with everything.

this8384 · Jan 28, 2011, 12:25 PM

Originally Posted by klozzer

The original affidavit I served her at the court house. She was told she had 20 calender days to respond. No response. When I filed the application for default, that gave her an additional 10 working days to respond. That letter was sent First class mail and I have the receipt from the Post Office showing the date it was mailed. After the 10 working days passed, I went to the courthouse to see if she responded and the answer was no. I then filed for a court date. I was given a checklist of what to bring. I asked the clerk if she did not respond to the 2nd notice then she is giving up her rights to the trial and it would be just me and the judge. Bare in mind, she signed the original decree, she signed the custody agreement and she signed the parenting plan. She has no intentions on responding or coming to court. I hope I am safe to assume the judge will go ahead with what I/we have requested since we are in agreement with everything.

That's cause for concern - most states have a law that involved parties are NOT allowed to personally serve each other.

Were the agreements both notarized when she signed them? If so, I'd submit those to the judge - that should be sufficient.

I understand your concern; I hate having to wait on the court system, even more so when children are involved. We just want you to realize that it's not always a slam-dunk. It sounds relatively easy in your case but we're just trying to play the devil's advocate for your sake.

klozzer · Jan 28, 2011, 01:11 PM

In Arizona anyone over the age of 18 can serve the papers. There is an acceptance of service form that she had to sign. She signed it right in front of the clerk at the courthouse. As far as the application for default, a receipt showing it mailed is sufficient for the court according to the clerk. The original decree was signed by both and notorized, the custody agreement was signed by both and notorized, the parenting plan was signed by both but not notorized. I was told by the clerk that particular form did not need to be notorized, just signed and brought with me to my court date. I appreciate you playing devil's advocate, I'm just trying to get positive answers on my behalf to ease my anxiety. I cannot in anyway shape or form have my boys live with her!