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    Napa Dad's Avatar
    Napa Dad Posts: 7, Reputation: 1
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    #1

    Oct 10, 2009, 07:14 PM
    My 3 year old son, his mother and I moved to Napa approximately 6 months ago. We rented a home together, leased in both our names. We were actually living together as a family for the first time. Our son was born in New York and I am the father listed on the birth certificate. My son's mom moved all her belongings here, has the utilities in her name and licensed and registered her car in California. Our son was attending Montessori preschool and was well-settled in our new community.

    Approximately three weeks ago she indicated she was going to fly to Aspen, Colorado to visit her brother and his family. She communicated little in the first week except for indicating she planned to stay another week. The second week turned into a third and she has just informed me that she does not intend to return to California. She refuses to communicate further. I informed her by email that this is kidnapping and have no reply.

    What steps must I take to have my son returned to California, at least to the extent of establishing a parenting plan? I am in a position to sshare custody and do not want to be an absentee father in our son's life---Is there some form of emergent hearing I can request that will establish this case within California---all my son's personal furniture and belongings remain in our home--as does her California registered car--Can California take jurisdiction over the case and establish what custody plan is to be established?

    I would truly appreciate any and all help that can be provided...

    I am an unmarried father of a wonderful three year old. Our little family moved to California exactly 5 1/2 months ago. My son's mother left the state three weeks ago for what was supposed to be a 1 week visit with family. She now refuses to return. I do understand the 6 month implications. My son had spent time since birth in Massachsetts prior to our move. We moved here and "connected" with the area. We leased a large beautiful home for six months, joined parents groups, enrolled our little boy in Montessori preschool etc. I have another teen age son that is in high schooll here in California etc. My older son is crushed to not have his baby brother in our home. I have extended the lease on our home and want to remain here.

    My son's mother left all her furniture and personal belongings here in California as well as her new car which was just licensed and registered in California a month ago---

    Do the "significant connection" guidelines overcome the 5 1/2 month situation--or should I wait 2 more weeks to actually have 6 months in the state?--

    My son's mother owns a home in Massachusetts but it is leased for a year and she relies on the rent for income.

    Thanks in advance for help--I miss my little boy and want Calif. To have jurisdiction.
    cdad's Avatar
    cdad Posts: 12,700, Reputation: 1438
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    #2

    Oct 11, 2009, 07:33 AM

    You need to file an emergency order with the courts for custody. Its called an exparte order.. mean emergency. If she fails at contact then she is guilty of parental kidnapping. You need to do this right away. Get a lawyer and get into court. If she refuses custody in any way she can be in deep trouble. ( all of this is under the assumption that you have lived in California for longer then 6 months ) If not then you will have to file where you last lived 6 months.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #3

    Oct 12, 2009, 03:59 PM

    Either get a lawyer in Napa or contact the family law faciliator's office. Set the matter for an ex parte hearing to establish custody, report the matter to the local DA's office, follow the local rules on giving notice to the mom of the hearing and go to the hearing.

    California has custody jurisdiction. But don't delay on this.
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #4

    Oct 12, 2009, 05:07 PM

    Was any court order ever issued to establish custody?
    Fr_Chuck's Avatar
    Fr_Chuck Posts: 81,301, Reputation: 7692
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    #5

    Oct 13, 2009, 06:22 PM

    Please don[t start new threads, merely add to the original.

    I have merged.

    If you have not lived with the child, ( the child is not in state now) so you will not make the 6 months. So it appears your previous state would have jurisdiction
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #6

    Oct 13, 2009, 07:08 PM
    Quote Originally Posted by Fr_Chuck View Post
    please don[t start new threads, merely add to the orginal.

    I have merged.

    If you have not lived with the child, ( the child is not in state now) so you will not make the 6 months. So it appears your previous state would have jurisdiction
    Under the UCCJEA the child does not need to be present in the state for the state to have jurisdiction (this is often referred to in case law as "recent home state jurisdiction"). If California was the child's home state (meaning he had lived in the state with a parent or person acting as a parent for 6 months with periods of temporary absences included) but the child is absent from the state and there is a stay-behind parent, the state (here California) still has exclusive child custody jurisdiction. Of course if more than 6 months has passed since the child's departure jurisdiction might be (but is not necessarily) elsewhere.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #7

    Oct 13, 2009, 07:12 PM
    Quote Originally Posted by Napa Dad View Post
    My 3 year old son, his mother and I moved to Napa approximately 6 months ago. We rented a home together, leased in both our names. We were actually living together as a family for the first time. Our son was born in New York and I am the father listed on the birth certificate. My son's mom moved all her belongings here, has the utilities in her name and licensed and registered her car in California. Our son was attending Montessori preschool and was well-settled in our new community.

    Approximately three weeks ago she indicated she was going to fly to Aspen, Colorado to visit her brother and his family. She communicated little in the first week except for indicating she planned to stay another week. The second week turned into a third and she has just informed me that she does not intend to return to California. She refuses to communicate further. I informed her by email that this is kidnapping and have no reply.

    What steps must I take to have my son returned to California, at least to the extent of establishing a parenting plan? I am in a position to sshare custody and do not want to be an absentee father in our son's life---Is there some form of emergent hearing I can request that will establish this case within California---all my son's personal furniture and belongings remain in our home--as does her California registered car--Can California take jurisdiction over the case and establish what custody plan is to be established?

    I would truly appreciate any and all help that can be provided....

    I am an unmarried father of a wonderful three year old. Our little family moved to California exactly 5 1/2 months ago. My son's mother left the state three weeks ago for what was supposed to be a 1 week visit with family. She now refuses to return. I do understand the 6 month implications. My son had spent time since birth in Massachsetts prior to our move. We moved here and "connected" with the area. We leased a large beautiful home for six months, joined parents groups, enrolled our little boy in Montessori preschool etc. I have another teen age son that is in high schooll here in California etc. My older son is crushed to not have his baby brother in our home. I have extended the lease on our home and want to remain here.

    My son's mother left all her furniture and personal belongings here in California as well as her new car which was just licensed and registered in California a month ago---

    Do the "significant connection" guidelines overcome the 5 1/2 month situation--or should I wait 2 more weeks to actually have 6 months in the state?--

    my son's mother owns a home in Massachusetts but it is leased for a year and she relies on the rent for income.

    Thanks in advance for help--I miss my little boy and want Calif. to have jurisdiction.
    Is still say California has jurisdiction, even if your son was not in California a full 6 months. There are alternative bases for jurisdiction other than home state (it sounds like your son has no home state as it is). I'd say you have significant connection jurisdiction.

    File your case in Napa County and you should be fine.
    Napa Dad's Avatar
    Napa Dad Posts: 7, Reputation: 1
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    #8

    Oct 14, 2009, 07:31 AM

    Thank you so much for this help. I am concerned about being a few days short---

    Other considerations are that allthe utilities in our California home are still in moms name. Her new car (purchased just a month ago in California) is registered and licensed her---and parked here in our driveway. She moved ALL her belongings into this house from her lifelong accumulation of art, cooking gear, clothing, books and furniture. This was a very large expensive cross-country move from New York. All things are still here. She left for Colorado with one suitcase ( and our boy ). My other teenage son (half-brother) is here and broken-hearted. I don't know how the court regards breaking up an "extended family" ? I don't know what to do but think I will probably file here... thanks again
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #9

    Oct 14, 2009, 10:11 AM

    You never answered my question about a court order establishing custody. Absent such a court order or one that established visitation, then she was free to move. The only way you can get things back is by filing in court for custody and/or visitation.
    Napa Dad's Avatar
    Napa Dad Posts: 7, Reputation: 1
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    #10

    Oct 14, 2009, 12:11 PM
    Sorry, no there has never been so much as a discussion about custody... let alone either of us going into court for orders. What she did though was not actually a moveaway. She left the home we share here with one suitcase leaving everything behind. The "visit" with family in Colorado was represented to be 10 days. Prior to her scheduled departure she phoned and said she was going to stay another week. The following week she phoned and said she did not intend to come back--and that "at some point in the future we should talk about how much visitation I might think I want"...

    My concern is that she might leave Colorado and return to New York state where our boy was born... ALL her worldly belongings are here---but she does own an apartment (that is leased to others for another 6 months)---

    If New York took jurisdiction it would mean very limited access to my son if for no other reason than the economics of conducting life on opposite sides of the country. My work is here ---my other son is here and happy in school. I also want the boys to remain as close as they are---

    Do you think I should wait the few days until I hit 6 months to file?---or do the issues of connectivity overcome the few days?

    Thanks--
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #11

    Oct 14, 2009, 01:33 PM

    I think you need to go to court ASAP to establish custody.
    JudyKayTee's Avatar
    JudyKayTee Posts: 46,503, Reputation: 4600
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    #12

    Oct 14, 2009, 01:44 PM
    Quote Originally Posted by Napa Dad View Post
    Do you think I should wait the few days until I hit 6 months to file?---or do the issues of connectivity overcome the few days?

    Thanks--

    To quote Cadillac, post #3 - and he's an Attorney practicing family law in California, by the way: "But don't delay on this."

    That seems to sum it up.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #13

    Oct 14, 2009, 08:02 PM
    Quote Originally Posted by JudyKayTee View Post
    To quote Cadillac, post #3 - and he's an Attorney practicing family law in California, by the way: "But don't delay on this."

    That seems to sum it up.
    Thanks Judy. Also I'm in the county right next door to this fellow and I've appeared in that court several times before.

    Yes, he needs to file right away. No delays.
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #14

    Oct 14, 2009, 08:05 PM
    Quote Originally Posted by Napa Dad View Post
    Sorry, no there has never been so much as a discussion about custody...let alone either of us going into court for orders. What she did though was not actually a moveaway. She left the home we share here with one suitcase leaving everything behind. The "visit" with family in Colorado was represented to be 10 days. Prior to her scheduled departure she phoned and said she was going to stay another week. The following week she phoned and said she did not intend to come back--and that "at some point in the future we should talk about how much visitation I might think I want"....

    My concern is that she might leave Colorado and return to New York state where our boy was born....ALL her worldly belongings are here---but she does own an apartment (that is leased to others for another 6 months)---

    If New York took jurisdiction it would mean very limited access to my son if for no other reason than the economics of conducting life on opposite sides of the country. My work is here ---my other son is here and happy in school. I also want the boys to remain as close as they are---

    Do you think I should wait the few days until I hit 6 months to file?---or do the issues of connectivity overcome the few days?

    Thanks--
    I'd advise you file ASAP. Now that your son is out of the state waiting until you hit the 6 month mark isn't going to matter (his absence now from Calif. Does not appear to be temporary). California still has jurisdiction so don't wait.
    Napa Dad's Avatar
    Napa Dad Posts: 7, Reputation: 1
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    #15

    Oct 14, 2009, 08:07 PM

    Also----It just occurred to me this afternoon. My son may have been born in New York state---and has spent time until he moved to California in New York---BUT---his mother is NOT a legal resident of New York. She also owns property in Connecticut and because she is able to benefit from lower State taxes she files taxes from Connecticut address, has a Connecticut drivers license, votes in Connecticut.. This seems important---? If she is not legal resident of New York---why would they want to "home state" my son?
    cadillac59's Avatar
    cadillac59 Posts: 1,326, Reputation: 94
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    #16

    Oct 14, 2009, 10:30 PM
    Quote Originally Posted by Napa Dad View Post
    Also----It just occurred to me this afternoon. My son may have been born in New York state---and has spent time until he moved to California in New York---BUT---his mother is NOT a legal resident of New York. She also owns property in Connecticut and because she is able to benefit from lower State taxes she files taxes from Connecticut address, has a Connecticut drivers license, votes in Connecticut..? This seems important---? If she is not legal resident of New York---why would they want to "home state" my son?
    Everything you mentioned is completely irrelevant to child custody jurisdiction. It makes no difference whatsoever where your son was born or where the mom is or was a resident. The residence of the parents has nothing to do with custody jurisdiction. If you are interested in how child custody jurisdiction works (and this is uniform throughout the entire US) Google or look at wikipedia's article on the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
    Napa Dad's Avatar
    Napa Dad Posts: 7, Reputation: 1
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    #17

    Oct 15, 2009, 07:27 AM
    Thank you so much--I have scheduled an exparte motion to be heard tomorrow
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #18

    Oct 15, 2009, 12:40 PM
    Good luck and keep us posted
    Napa Dad's Avatar
    Napa Dad Posts: 7, Reputation: 1
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    #19

    Oct 16, 2009, 04:17 PM
    Today did not provide a very good outcome. My son's mom was able to locate a friend-of-friend civil attorney in San Francisco who appeared telephonically. I believed I had established all the jurisdictional connectivity issues to overcome any question related to being in California couirt 12 days prior to a full six months.

    The matter was heard by a commissioner.---Mom's attorney said she was already back in New York (which I know to be untrue) and that she had been in California for a 4 month "vacation".

    The commissioner ruled that inasmuch as there is a dispute--the issue of whether my son be returned at all is to be heard at a hearing. He shortened time---still requiring until November 9th---
    ScottGem's Avatar
    ScottGem Posts: 64,966, Reputation: 6056
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    #20

    Oct 16, 2009, 04:45 PM

    If she is getting legal representation, they you should get your own. The ruling by the commissioner seems logical. At least you weren't ruled against, but he was just passing the buck to a judge.

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