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jackie73 · Jun 29, 2009, 02:46 PM

Ex is seeking custody to minors age 15 &9. I have been primary caretaker for last eight years. Ex filed in Illinois court, children's home state is Missouri. I'm pro se. I believe UCCJEA applies to mo.. looking for free step by step how to on motion to dismiss.

ScottGem · Jun 29, 2009, 04:11 PM

Where was the original order issued? If it was issued in IL and the NCP is still in IL, then IL still hs jurisdiction unless it was officially moved to MO.

Family court is usually pretty lax on formality. What are your grounds for dismissal?

jackie73 · Jul 1, 2009, 01:06 AM

No previous order, albeit one order of protection granting temporary physical custody of all minor children eight yrs ago. Children have lived w/ me (15 yr old I allowed one school yr w/ NCP;07/08) in MO since June 06. I've studied UCCJEA and feel safe to request dismissal on jurisdictional grounds. This appears to be a Mo case. I actually need info on step by step to do this. I don't want to pay for legal website access if I can get this for free. I've searched for many weeks, I'm running out of time. Seems the know how is what you pay for. Thanks for your consideration, Scott.

ScottGem · Jul 1, 2009, 06:22 AM

Like I said, Family Courts tend to be less formal and more tolerant of petitioners going pro se. So I wouldn't be too concerned about format.

Call the court clerk and see if they will give you the process. I do agree that it is unlikley that IL has jurisdiction since there is no prior order in IL and the children have not lived there for years.

You might simply write a letter to the court stating that you do not believe they have jurisdiction for the reasons I just stated.

jackie73 · Jul 1, 2009, 12:48 PM

Thanks again, Scott.

jackie73 · Jul 5, 2009, 04:19 AM

Non custodial parent seeking modification of child custody pursuant to Illinois Marriage and Dissolution of Marriage Act 750 ILCS 5/610 without existing initial order. Is this proper, and if so,what gives? If not, Could I object or request dismissal for improper complaint( for lack of better terminology)?

ScottGem · Jul 5, 2009, 05:06 AM

If I'm following you the divorce decree, including custody order has not been finalized yet, but the NCP has filed a motion to modify it. Is that correct?

If so, it depends on what stage the divorce settlement is at. If the settlement has been agreed to, but the court has not ratified it, it may be appropriate to file for a modification. However, if the settlement hasn't been presented to the court yet, then asking for a modification is inappropriate.

jackie73 · Jul 5, 2009, 05:35 AM

Hi, Scott. Seems you are a busy man. To answer your question, there was no marriage. Co-habitation for nine years, separated June, 2001. Never challenged in court. No common law in IL. The way I read it, custody can be petitioned pursuant to IMDMA sans marriage. My issue is petition to modifyw/o initial order. Could this be a mistake on attorney's part ( if so, what remedy available?), and is it usually overlooked?

ScottGem · Jul 5, 2009, 05:41 AM

The same question still applies. Is there an agreement pending court ratification? If not, then there is nothing to request modification of. So the judge is going to look at it and just throw it out.

jackie73 · Jul 5, 2009, 05:54 AM

Cool! I've devoted the last four days to this motion to dismiss for subject matter jurisdiction. I've already drafted it. You think the Court will recognize this, or should I redraft to include this info? I've researched this just in case, but I'm at a loss as to the terminology. I can't find arguments in civil code or law resources. Any suggestions? I would like to appear as competent as possible.

jackie73 · Jul 5, 2009, 05:59 AM

Oops! Forgot to include an answer to your question. No pending agreement, just mutual understanding. No court action with exception to order of protection 2001.

Fr_Chuck · Jul 5, 2009, 06:01 AM

If there is already a original motion before the court, **** you or they have filed a motion for specific terms, and esp if they already filed a motion, they have to file a modification to make any changes to any motion already filed by them before the court.

But what the heck, never hurts to try and ask for that new motion to be dismissed, worst case it won't be.

I did hear the word attorney, and then you doing your own, one word, you will lose, they will file and counter file and use trick wording to some point that normally they will push it till you do something wrong.

If they have an attorney, you almost always have to get one if you expect to win.

jackie73 · Jul 5, 2009, 06:10 AM

Ouch! Typical consensus. Justice is just us. Still, pro se for practical purposes- broke. Either way, no prior order. No anything. Am I wrong in thinking petition not legit?

ScottGem · Jul 5, 2009, 06:34 AM

Its not a matter of legit or not. It's a matter of process. You can't put the cart before the horse. You can't modify something that has not already been filed. So it's a moot issue.

jackie73 · Jul 5, 2009, 06:53 AM

Are you talking wrong and right or black and white? I'm concerned that this might normally be considered an oversight at worst. Can you quote any statutes or case law I can refer to? I'm at a disadvantage. I was surprised to learn child custody issues could be decided under a marriage act w/o being married, so I can't trust common sense. It's not so common. By the way, I know you're not an attorney. Sorry so determined.:)

cdad · Jul 5, 2009, 07:10 AM

Originally Posted by jackie73

Are you talking wrong and right or black and white? I'm concerned that this might normally be considered an oversight at worst. Can you quote any statutes or case law I can refer to? I'm at a disadvantage. I was surprised to learn child custody issues could be decided under a marriage act w/o being married, so I can't trust common sense. It's not so common. By the way, I know you're not an attorney. Sorry so determined.:)

In the original paperwork there should have been some sort of temporary orders or in the paperwork regarding your restraining order. Has he been aknowlaged as the legal father yet in some way since you weren't married ?

Did he sign aknowlagement of paternity or has there been a DNA test done by court orders ?

jackie73 · Jul 5, 2009, 07:24 AM

Emergency order of protection (2001) only good for 60 days. Not needed since. Children have had regular visits until 1 yr. ago. Father signed birth certificates and acknowledgement of paternity years ago. Any help?

s_cianci · Jul 5, 2009, 07:30 AM

If there's no "initial order" then how do you label one as the "non-custodial" parent? You can't "modify" an order that doesn't exist to begin with. What exactly is your situation? Are you the so-called "non-custodial" parent trying to establish visitation rights? Or are you the "custodial" parent trying to stop the other parent from gaining custody and/or visitation? The bottom line is that either parent has the right to file whatever motion (s)he wants. Then the other parent has to file some sort of response and the judge makes the ultimate decision. My personal advice to you is to try and work out the custody/visitation arrangements between the two of you. If you "want it in writing" that's fine, but the more you can agree to on your own before going in front of a judge, the easier and cheaper it'll be, for both parents.

jackie73 · Jul 5, 2009, 07:55 AM

Although I appriciate your candor, this matter is far from simple. This matter concerns abuse, although I'm trying to avoid the emotional upheaval and expense associated, by having this case dismissed for lack of subject matter jurisdiction. I think the case has merrit, but I err on the side of caution. I feel that if the case is dismissed or transferred to MO courts, he will not proceed further. The children have no wish to see their father (for very good reason) and further litigation would only make a bad situation worse. As to your question, I say 'custodial' because I have been their only caretaker and they reside w/ me. Please refer to my thread, this may help you better understand my situation. I understand I have never sought legal custody, but for purposes of explaining I used this reference. Thank you for responding.

cdad · Jul 5, 2009, 09:19 AM

Your main problem is that he can ask for custody anytime because it has never been decided by a court. If he is asking for a modification.. Im not sure that that means a preexisting order. It can also mean a modification of the way things already are. He has the right to ask the courts to see ( seek visitation ) with his children. If you feel there is a danger involved then you can plead the courts for a different outcome like supervised visitation but unless you can prove he is a danger beyond that then more then likely the courts will grant him something. Also there should be an order of support once custody is established.