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    Dalliesgrrl's Avatar
    Dalliesgrrl Posts: 43, Reputation: 1
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    #1

    Nov 16, 2008, 06:35 PM
    Father Deploying; Bio Mom says NO delegation of visitation!
    My husband is going to deploy in March overseas with the National Guard. Up until this point, he has had very regular visitation with his two little girls, 4 and 2. They live with their mother in Georgia who has primary physical custody. My husband and I live in Arkansas. We have one little girl who his daughters are close to. I believe that I have a very close and substantial relationship with the children and my husband requested that his visitation be delegated to me or his parents for the duration in which he's gone. I have proven that the girls would be in a stable home and very well taken care of in my care. There is no text in the Divorce Decree regarding this.

    As of the phone conversation my husband had with his ex wife, she said she would not even consider allowing anyone else to have his visitation and that there are no grand parent or step parent rights in Georgia. The divorce was filed and finalized in Arkansas but she says since the girls live there now, they fall under Georgia Law.

    Where do I begin?
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #2

    Nov 16, 2008, 07:29 PM

    Frankly I think you are fighting a losing battle. From what I understand the custodial parent in such cases does not have to allow delegation and there is no law that would compel her to.

    I think your best bet is to appeal to the mother's concern for what's best for the kidsy doing so she runs the risk of alienating the kids when they find out mom won't let them visit their grandparents, half sister or step mom.
    Fr_Chuck's Avatar
    Fr_Chuck Posts: 81,304, Reputation: 7692
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    #3

    Nov 16, 2008, 07:30 PM

    You don't, your hubby, hires an attorney and files for a modification of the custody agreement to allow for this. But to be honest, I am not sure that in Ark or Ga you will have much luck. He has the visits, not you, not the sister. I think ( not sure) that Ark does have some level of grandparent visit rights, if they do, then the grandparents would need to file for their rights in the court where the decree has been ordered.

    Of course then the ex can file a motion to have it moved to GA where she lives and the court will have to decide if they can move it or not.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #4

    Nov 16, 2008, 08:07 PM

    You asked a couple of different questions but let's start in reverse order of how you asked them. The first has to do with child custody jurisdiction. If your custody orders arise out of Arkansas and your husband still resides in this state, jurisdiction will ALWAYS be in Arkansas, no matter where the kids live. They could live in Outer Mongolia and it wouldn't make a bit of difference. This is because under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which both Arkansas and Georgia have in effect, Arkansas has what is called "continuing exclusive jurisdiction" (CEJ). This continuing jurisdiction can only be lost if your husband moves away from Arkansas and lives elsewhere or an ARKANSAS court decides it no longer has jurisdiction because there is no longer a significant connection between the child and the state and substantial evidence is no longer available in the state concerning the child's care, protection, training or personal relationships. And that hasn't happened. In short, the ex-wife doesn't know what she is talking about.

    The next question has to do with delegation of custodial rights. I've never heard of such a thing and to my knowledge it doesn't exist. Of course, at the same time, unless the custody order provides otherwise, when the kids are suppose to be in dad's care there is nothing that precludes him from leaving them in his mom's care, or your care and leaving for a while. He doesn't have to be with the kids 100% of the time they're on "his time" anymore than they have to be in the presence of the mom on her time 100% of the time.

    I think I'd ignore the ex-wife. Tell her that when the girls are suppose to be with dad under the order (even if he's deployed) then you expect them to be where they are ordered to be (in his home in Arkansas I presume). That's it. If she denies access you will be calling the police, making a police report, and filing a contempt motion. Tell the ex it's none of her business if dad's not there during his visitation time and if she doesn't like it then she can come to Arkansas and ask to change the order.

    That's the advice I'd give you if you were my client.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #5

    Nov 16, 2008, 09:14 PM

    I'll say one more thing and then I'll stop talking.

    If your husband's ex-wife gets a good family law attorney in Georgia, she might try to modify the custody orders in Georgia after your husband deploys (overseas you said) by arguing that, since he no longer "resides" in Arkansas, Georgia has jurisdiction to modify the order (recall that I said earlier that once your husband no longer lives in Arkansas, the custody orders can be modified elsewhere.) So the question becomes, what happens when he deploys? Does it matter that the deployment is temporary or that he has no choice in the matter? This is where the UCCJEA has problems. It doesn't give us a really specific definition of what it means to "reside" in a locality and doesn't talk about military deployments or temporary job relocations or involuntary residency. The official comments to the Act say that "residence" is not to be understood as technical domicile (which is where one lives and intends to return when he's gone, which probably applies in your husband's case- after his deployment he's coming home to Arkansas, which he probably considers his domicle). But relying on the official comments in trying to define residence hurts your case.

    So the point is this could get very expensive and could result in a jurisdictional dispute. But the advice I gave previously I still think is best. There's really nothing you need to do but remind the ex-wife that the order is the order is the order and it says what it says and when the kids are suppose to be with their dad (or at his home) that's where they have to be whether the ex wife likes it or not and that you intend to act aggressively in enforcing the orders.
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #6

    Nov 17, 2008, 07:27 AM
    [QUOTE=cadillac59;1378178]
    Tell her that when the girls are suppose to be with dad under the order (even if he's deployed) then you expect them to be where they are ordered to be (in his home in Arkansas I presume). That's it. If she denies access you will be calling the police, making a police report, and filing a contempt motion. Tell the ex it's none of her business if dad's not there during his visitation time and if she doesn't like it then she can come to Arkansas and ask to change the order.


    Another situation that varies from State to State - in NY if the parent is deployed the visitation Order, for lack of a better phrase, is suspended. Of course, the other parent can allow the child to visit with the father's relatives if he/she so wishes but the visitation order is suspended until the parent returns. There is no contempt if the custodial parent refuses to allow the children to visit the other parent's relatives during the deployment because the order is for visititation between parent and child, not with "his home in Arkansas" or with another family member. You cannot - in NYS - simply "transfer" or "assign" your visitation rights to another person during your absence.

    It's one thing if the parent is out shopping or at a sporting event or whatever and someone else is with the kids; it's another situation if he/she is deployed.

    Almost the same situation was heard in Family Court in my area last week and it was covered by all the papers.

    Or am I misunderstanding you?
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #7

    Nov 17, 2008, 09:36 AM

    We had a similar question not too long ago. And from what I remember, military law takes precedence here. And military law allows the custodial spouse to suspend visitation while the NCP is deployed. That's why I said you won't be able to force her.

    If you are looking for a starting place, I would start with the legal advice your husband gets from his base. They should have people who can check both military and civil law to see if there is anything he can do. But I suspect they will confirm what I said.

    If they don't, then your husband should get an attorney to file a petition to modify the support agreement.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #8

    Nov 17, 2008, 12:46 PM

    The idea of a custody order being "suspended" during a servicemember's deployment would seem reasonable, but in California it doesn't happen automatically unless the order provides for it. The order simply is what it is and a custodial parent who doesn't make the kids available for visitation during the scheduled times risks a contempt. Now, on the other hand, it may well be a complete defense to a contempt that the non-custodial parent was unavailable to take custody during his time (and there is a statute in the Family Code that says when one parent is unwilling or unable to take custody of the child - presumably for any reason- the other parent is entitled custody by default) but I think the burden is on the NCP to show this. Again, it's more of a defense to a contempt than anything else.

    I say check with local counsel to see if Arkansas has any sort of automatic suspension of custody orders in military deployment cases
    And if not, play hardball with the mom. Tell her it's up to her to move to modify the order before dad's deployment otherwise you'll treat her non-compliance with the order as a contempt and go from there.

    I've never heard of federal law governing this sort of situation (please cite the law if I'm wrong because I'd love to know).
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #9

    Nov 17, 2008, 01:16 PM
    Quote Originally Posted by cadillac59 View Post
    The idea of a custody order being "suspended" during a servicemember's deployment would seem reasonable, but in California it doesn't happen automatically unless the order provides for it. The order simply is what it is and a custodial parent who doesn't make the kids available for visitation during the scheduled times risks a contempt. Now, on the other hand, it may well be a complete defense to a contempt that the non-custodial parent was unavailable to take custody during his time (and there is a statute in the Family Code that says when one parent is unwilling or unable to take custody of the child - presumably for any reason- the other parent is entitled custody by default) but I think the burden is on the NCP to show this. Again, it's more of a defense to a contempt than anything else.

    I say check with local counsel to see if Arkansas has any sort of automatic suspension of custody orders in military deployment cases
    and if not, play hardball with the mom. Tell her it's up to her to move to modify the order before dad's deployment otherwise you'll treat her non-compliance with the order as a contempt and go from there.

    I've never heard of federal law governing this sort of situation (please cite the law if I'm wrong because I'd love to know).


    My stepdaughter was an Attorney with the VA, has since transferred but I've put in a call to her - my feeling is she either knows or knows someone who does. I know in NY at the moment that visitation is suspended (because it's all over the papers) - I don't know if it's Federal Law but I'll attempt to find out.

    What is your take on the divorce/custody agreement in this regard - I would expect (I know that's a dangerous word on a legal forum) that the decree/agreement provides for vistitation by the child with the father, not with the stepmother, not with the grandparents (step or otherwise). I can't understand the concept of the mother being in contempt for not allowing the stepmother and/or grandparents (again, step or otherwise) visitation when the husband is deployed as the father is the one with visitation rights, not the stepmother, etc. - ?

    And if the stepmother, grandparents, ARE legally entitled to hold the mother in contempt, how far does that extended family reach? Cousins, aunts, uncles? Can EVERYBODY demand visitation and then pull the mother into Court for contempt? Blood? Step related? Where is the line drawn? How about ex-spouses? I think you understand where I'm going here.

    I'm not saying the father can't go into Court and get a modification. I'm asking about the circumstances as presented here - father has visitation order, father is deployed, there is no Court-ordered or approved changed, is mother in contempt for not allowing visitation by child with stepmother and/or grandparents.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #10

    Nov 17, 2008, 09:56 PM

    What is your take on the divorce/custody agreement in this regard - I would expect (I know that's a dangerous word on a legal forum) that the decree/agreement provides for vistitation by the child with the father, not with the stepmother, not with the grandparents (step or otherwise). I can't understand the concept of the mother being in contempt for not allowing the stepmother and/or grandparents (again, step or otherwise) visitation when the husband is deployed as the father is the one with visitation rights, not the stepmother, etc. - ?

    And if the stepmother, grandparents, ARE legally entitled to hold the mother in contempt, how far does that extended family reach? Cousins, aunts, uncles? Can EVERYBODY demand visitation and then pull the mother into Court for contempt? Blood? Step related? Where is the line drawn? How about ex-spouses? I think you understand where I'm going here.

    I'm not saying the father can't go into Court and get a modification. I'm asking about the circumstances as presented here - father has visitation order, father is deployed, there is no Court-ordered or approved changed, is mother in contempt for not allowing visitation by child with stepmother and/or grandparents.

    __________________

    The problem I am having is that in this case it seems dad is being treated as if he has inferior rights to the child simply because he has "visitation." Never mind the labels ("custody", "custodial vs. non-custodial parent") the parties have an order that the kids are to be in HIS care during certain times and on certain dates. It doesn't say he has to be present with them 100% of the time (as if seeing his own children were some sort of privilege the mom is allowing). Must mom be with the kids 100% of the time during her time? If not, why not? Can mom leave the kids on her time with 3rd parties? Yes? No? If yes, for how long before her custody becomes "suspended"?

    Never mind that the dad may be leaving town for a long time. What if he were a National Guardsman assigned for weekend duty during one of his visitation weekends but his pick up time for the kids is two hours before reporting for duty and duty ends two hours before the kids are to return to mom. Say he plans on leaving them with grandma during his duty time. Can mom refuse the visit become he's "deployed" or because the larger part of the weekend will be spent with grandma? If so, why if the order is silent on the subject?

    And why should dad have to modify the order? It's the mom who intends to deny access contrary to the order because she, in her wisdom, has decided dad won't be around (enough of the time) for her to need to bother with following the order. Let mom worry about modifying the order or risk a contempt I say. Maybe she's got a great defense. I'll admit that. It's not about being in contempt by denying grandma time with the kids; it's about interferring with dad's time and his rights to allow 3rd parties on his time to watch the kids while he's away, just as mom may be using daycare during her time while she works (hypothetically speaking) and making dad pay half of the cost as a add on to child support.
    Dalliesgrrl's Avatar
    Dalliesgrrl Posts: 43, Reputation: 1
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    #11

    Nov 17, 2008, 11:29 PM

    UPDATE: We have yet to receive a further response from my husband's ex wife, our personal attorney sucks and refuses to fight for us, so my next question is this: She the visitation in which she may in contempt should she not allow me/grandma to take the children, what do I need to file the contempt charges? Just a power of attorney from my husband stating that in his absence, either I or grandma are to take care of the children? What is some legal wording I should make sure is in this document?

    You guys have been so very helpful and I'm truly thankful for the advice you have given us. I would gladly pay one of you to represent us over his lame attorney now! Again, thank you, and I will keep updating as the situation grows. We are supposed to pick up the girls this Saturday so... we shall see!

    Thank you! Thank you! Thank you!
    Dalliesgrrl's Avatar
    Dalliesgrrl Posts: 43, Reputation: 1
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    #12

    Nov 17, 2008, 11:31 PM
    ALSO: This was ALL we got back from our attorney...

    "I agree with her assessment that if this matter is heard, it could be (provided she hire someone to get the case transferred to Georgia) transferred to Georgia since Georgia is now the children's home state; however, she would have to go through the "hoops" and expense of getting it transferred.

    I agree that your parents would likely be awarded visitation with the children and that, if this Court or the Georgia court made such a ruling, that your wife would be allowed the right to collect the children. Step-parents are a different matter."
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #13

    Nov 18, 2008, 07:30 AM
    Quote Originally Posted by Dalliesgrrl View Post
    She the visitation in which she may in contempt should she not allow me/grandma to take the children, what do I need to file the contempt charges?
    Before we can agree that she may be in contempt we would need to see the EXACT wording of the visitation order. You may not even be able to file anything since you may not have an legal standing. Step-parents often don't.

    Maybe its time to get a new attorney. Did you do as I suggested and contact the base legal department? I still believe that military law may supercede civilian law here leaving you out in the cold.
    GEORGIAGIRL823's Avatar
    GEORGIAGIRL823 Posts: 18, Reputation: 1
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    #14

    Nov 19, 2008, 05:50 PM

    Twenty-three states have statutes which authorize stepparent visitation. In ten states (California, Delaware, Kansas, Louisiana, New Hampshire, Ohio, Oregon, Tennessee, Virginia, and Wisconsin), stepparents are explicitly denoted as having the right to request visitation. In thirteen other states (Alaska, Connecticut, Georgia, Hawaii, Illinois, Maine, Michigan, Minnesota, Nebraska, New York, Texas, Washington, and West Virginia), "interested third parties" are granted the right to request visitation, and stepparents come within the definition of interested
    Third parties. As further noted in the Table, in the absence of a statute, some courts have held that stepparents may petition for visitation (Arizona, Idaho, Indiana, Kentucky, Maryland, and
    Utah), while others have held that stepparents may not petition for visitation (Alabama, Florida, Iowa, and South Dakota).
    Dalliesgrrl's Avatar
    Dalliesgrrl Posts: 43, Reputation: 1
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    #15

    Nov 19, 2008, 05:57 PM

    May I ask where you got this information? I'd like to see where Arkansas would fall into that situation.

    I apprecite your response!
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #16

    Nov 19, 2008, 06:08 PM
    Quote Originally Posted by GEORGIAGIRL823 View Post
    twenty-three states have statutes which authorize stepparent visitation. In ten states (California, Delaware, Kansas, Louisiana, New Hampshire, Ohio, Oregon, Tennessee, Virginia, and Wisconsin), stepparents are explicitly denoted as having the right to request visitation. In thirteen other states (Alaska, Connecticut, Georgia, Hawaii, Illinois, Maine, Michigan, Minnesota, Nebraska, New York, Texas, Washington, and West Virginia), "interested third parties" are granted the right to request visitation, and stepparents come within the definition of interested
    third parties. As further noted in the Table, in the absence of a statute, some courts have held that stepparents may petition for visitation (Arizona, Idaho, Indiana, Kentucky, Maryland, and
    Utah), while others have held that stepparents may not petition for visitation (Alabama, Florida, Iowa, and South Dakota).


    The question is whether this is covered in the current Order and/or whether the "father" can assign visitation - no question that States allow it but the question is HOW - ?
    cdad's Avatar
    cdad Posts: 12,697, Reputation: 1438
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    #17

    Nov 19, 2008, 06:15 PM
    Quote Originally Posted by GEORGIAGIRL823 View Post
    twenty-three states have statutes which authorize stepparent visitation. In ten states (California, Delaware, Kansas, Louisiana, New Hampshire, Ohio, Oregon, Tennessee, Virginia, and Wisconsin), stepparents are explicitly denoted as having the right to request visitation. In thirteen other states (Alaska, Connecticut, Georgia, Hawaii, Illinois, Maine, Michigan, Minnesota, Nebraska, New York, Texas, Washington, and West Virginia), "interested third parties" are granted the right to request visitation, and stepparents come within the definition of interested
    third parties. As further noted in the Table, in the absence of a statute, some courts have held that stepparents may petition for visitation (Arizona, Idaho, Indiana, Kentucky, Maryland, and
    Utah), while others have held that stepparents may not petition for visitation (Alabama, Florida, Iowa, and South Dakota).
    Ok before we push this any further it has to be made clear what exactly we are dealing with and who the interested parties are. As Scott pointed out earlier much of this may be superseded by the government. As far as being deployed his state of residence remains as Arkansas because that is federal law. It would only change should he pull up stakes and migrate elsewhere. But being " deployed " doesn't change his home state obligations.

    http://www.abanet.org/family/militar...yLawIssues.pdf

    http://www.abanet.org/family/militar...ent_enlist.pdf

    Section of Family Law: Military Committee


    I suggest further reading before this issue can come to light.
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #18

    Nov 19, 2008, 06:23 PM

    GeogiaGirl,
    That looks like a copy and paste job from another site. Nothing wrong in that as long as you provide a link or address for the site.

    I also suspect that those statutes refer to situations where the step parent is no longer married to the natural parent. That isn't the situation here.
    GEORGIAGIRL823's Avatar
    GEORGIAGIRL823 Posts: 18, Reputation: 1
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    #19

    Nov 19, 2008, 06:40 PM

    Yes it is copied. I am no lawyer by far but have been researching for my own personal reasons and came upon this and felt I should share.
    Steparents' Rights: Custody and Visitation

    That's the link..

    Im just trying to help and give some hope is all!

    If they get a modification of visitation then I believe they have a fighting chance at having his visitations delegated to her at least to some extent, after all its all about what's in the child's best interest right.
    So the way I see it

    In the case of deployment, the continued relationship with Stepmother and siblings will serve as a stabalizing force in the transition from deployment to redeployment of child's father.

    Which is certianly in the child's best interest.
    Dalliesgrrl's Avatar
    Dalliesgrrl Posts: 43, Reputation: 1
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    #20

    Nov 19, 2008, 06:46 PM

    I've re-read through the divorce degree again, and there is no text concering my husbands military status, stepparents, grandparents, third parties or even responsible parties. There's not even text concerning who can pick up the kids should one or the other parents not be able.

    However, I did note this as the second to last paragraph in the decree: "This Court shall retain jurisdiction of the parties and subject matter of this action for purposes of enforcement of and, if applicable, modification of the terms contained herein."

    Can I summerize that to mean she would have to come up here and request to have the case transferred to Georgia? We would not have to be present for that, correct? Therefore, we would't be liable for her fees? The reason I ask is because one of the "threats" made towards my husband recently was that he was going to pay all her attorney fees if he takes her to court over this. Obviously, she stated that since the children live in Georgia, that she could make motions there. Obviously, this text proves that incorrect.

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