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Can You File for Custody in a State Where the Child Has Never Lived

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  • 08-02-2012, 03:40 PM
    charleet83
    Can You File for Custody in a State Where the Child Has Never Lived
    My question involves a child custody case from the State of: [Southeast State] / California / [State bordering CA]. Forgive the length, it is a complicated situation, but unique and interesting, if you take the time to read on.

    I write on behalf of a friend who is not internet savvy. He and the mother of his child gave birth and lived together (unmarried) in California. She was a physically abusive partner and undoubtedly suffers from an undiagnosed mental illness. They lived together, he worked and cared for the family, at one point she got a domestic violence charge from violence against him. When child was around 8-months, mother flipped out and ran away with child. The father had his own legal problems from various bar fights (he suffered from alcohol abuse), and he was so devastated by the disappearance of child, he fled the state.

    After traveling and homelessness for 3 years, he is now with in [Southeast State], happy, healthy, very financially stable, and in a loving relationship. He does still have a warrant in CA for misdemeanor violation of probation. He has begun paying back-due child support to CA, not to the mother, because she was on welfare. No custody or child support arrangement was ever officially designated by a judge. He pays child support to state govt because she is on welfare. He now hopes to file for custody, from his current location, because he is genuinely worried about the well-being of his son, for reasons apparent by a description of the mother.

    Abused as a child and raised in foster care, mother is an ex(?)-addict and has been homeless much of her adult life. Mother was picked up with child by CPS two years ago although they decided to give her back the child (for reasons we will never understand). She will never tell the father her physical location because of paranoid delusions that he will kidnap the child. But she does contact him occasionally to ask for money or for someone to talk to (she has no real friends, because she is crazy). She is supposedly in [State bordering CA] now (so we think), unemployed, cannot find a stable place to live, has been married multiple times in two years (according to her - we can't ever know if she is telling the truth), and supposedly is being pursued by an ex-husband who just got out of jail and wants to murder her. She cannot find childcare because supposedly every childcare facility she has used wants to beat and abuse her and her child.

    In the eyes of all who know the two of them, he is obviously the more fit parent. He wants to file for custody. He is financially and mentally stable. Can he file for custody in [Southeast State], even though the child is far far away in [State bordering CA]? How will that play out if he has no idea of her physical whereabouts? And given her paranoia, the second she learns he has filed for custody, she will flee to a new location and continue to try and hide. How will his warrant in CA figure into the situation? Can anyone give us advice about what to do in this royally F*** UP Situation??
  • 08-02-2012, 04:21 PM
    Mr. Knowitall
    Re: Can You File for Cusotdy in a State Where the Child Has Never Lived
    So, basically, your friend is a wanted fugitive with a history of alcoholism and antisocial behavior who fled the state to avoid criminal charges and a probation violation, abandoned his child for three years, lived a life of vagrancy, is only just now getting around to paying support and, after choosing to be absent from the child's life for more than three years, wants custody? That's not a portrait of somebody a court is apt to agree is "obviously the more fit parent". Perhaps the lesser of two bad choices?

    Even if we ignore the fact that California has already issued a support order, which most likely does address custody and visitation, no, you can't pick a random state and have it decide the custody of a child who has no contact with that state. Dad needs to go back to California and file there.
  • 08-02-2012, 04:52 PM
    charleet83
    Re: Can You File for Cusotdy in a State Where the Child Has Never Lived
    Thank you so much for the quick response. You are generally right in your characterization of my friend, except for the "abandoned his child" part -- the mother ran off and has continually refused to reveal her location. Were he to track her down, she has a history of violent physical abuse toward him, including beating him with chains and other weapons, and he has real reason to fear for his own safety in pursuing her. The child support order was only filed a year ago, not three, so he has not avoided it for three years. And he has certainly not *chosen* to be absent from the child's life. He sent presents to a friend of a friend's address, who made sure they made it to the child. He has spoken with child on the phone, he has send the mother money via Western Union on a number of occasions. And the situation surrounding the warrant for probation violation are similarly sticky. The point is, you are right in some of your characterizations, but the situation admits of some nuance.

    Perhaps I should post in a different forum re: the nature of the warrant, and whether, with a proper lawyer, he might be able to pay his way out of it through fines, etc, and then file for custody in California?

    By the way, are you saying he needs to "go back to California" as in quit his job and abandon the first healthy job, life, etc, he has been able to secure for himself in years? Couldn't he try to clear up the warrants via a lawyer and keep his full-time job here on the east coast, and then have a lawyer help him with the custody proceedings out of state, while he holds down this job?
  • 08-02-2012, 08:07 PM
    Dogmatique
    Re: Can You File for Cusotdy in a State Where the Child Has Never Lived
    There is proof of this violence of course, isn't there?

    Yes, he's chosen to not be part of the child's life. He's been free at ANY point to follow up with an enforceable visitation plan - that much is crystal clear.

    Fwiw, the situation is far from unique. Unless Dad can PROVE that Mom is unfit - and so far nothing that you've stated suggests that - he has no chance of getting custody.
  • 08-02-2012, 08:43 PM
    charleet83
    Re: Can You File for Cusotdy in a State Where the Child Has Never Lived
    Yes, there is proof. And I'm glad you worded your response the way you did. Because this is exactly what I do not have enough knowledge to understand (and I assume, neither does he, which is why he has not done anything). These things are really hard to take action on if you feel totally uncapable and without proper knowledge. Here is my question:

    "He's been free at ANY point to follow up with an enforceable visitation plan"

    What does that mean?? What exactly is an "enforceable visitation plan" and how does one "follow up with" it? The plan of action he should pursue may be "crystal clear" to someone who knows more about all this stuff, but I don't even understand the terms your using. That's why I'm reaching out for help and clarifications.

    In terms of mom, my question is, if he files for custody and she runs and never responds, what happens then? I think her being "unfit" can be proven by his recording their phone conversations and that being submitted as evidence. She has no employment, is *homeless*, has a history of domestic violence charges, and has been married at least 3 times in 2 years, has a case file with Child Protective Services. Isn't that "unfit"? He has a full time job, a place to live, and upon talking to a judge or to a third party, comes off as more mentally stable. Isn't that "fit"?

    So yeah... what does it mean to "follow up with an enforceable visitation plan"?
  • 08-02-2012, 11:06 PM
    Mr. Knowitall
    Re: Can You File for Cusotdy in a State Where the Child Has Never Lived
    Quote:

    Quoting charleet83
    View Post
    And he has certainly not *chosen* to be absent from the child's life.

    He hasn't gone back to California because he doesn't want to face the music for his crimes and probation violation. His non-contact with the child flows from that. That's a choice.
    Quote:

    Quoting charleet83
    He sent presents to a friend of a friend's address, who made sure they made it to the child.

    Demonstrating that, in fact, mom's not hard to find.
    Quote:

    Quoting charleet83
    Perhaps I should post in a different forum re: the nature of the warrant, and whether, with a proper lawyer, he might be able to pay his way out of it through fines, etc, and then file for custody in California?

    He's free to retain a lawyer in California to try to work out a deal, but I'm not expecting a great deal of sympathy from the court for a guy who decided he would rather flee the state than deal with his legal problems and fulfill the terms of his prior sentence and probation.
    Quote:

    Quoting charleet83
    By the way, are you saying he needs to "go back to California" as in quit his job and abandon the first healthy job, life, etc, he has been able to secure for himself in years?

    No, that's what you're saying. What I'm saying is that California has jurisdiction so, should he decide to try to get visitation or custody, he will need to do so through the California courts. You haven't shared the details of his pending criminal charges or probation; again, he can retain a lawyer in the county where he's charged to try to see what type of deal he can work out.
    Quote:

    Quoting charleet83
    Couldn't he try to clear up the warrants via a lawyer and keep his full-time job here on the east coast, and then have a lawyer help him with the custody proceedings out of state, while he holds down this job?

    When you decide that a court's order to appear for a criminal case, and a sentence to probation, shouldn't apply to you, and flee the state, you should expect that the judge is going to want to see your face in court when resolving the outstanding charges and probation violation, and in most cases you'll want to bring your toothbrush. This won't be resolved by magic. Once he takes responsibility for his actions and faces up to his criminal past, he can worry about custody - but that's also not something that's magically going to happen with him in another state. Unless the mother rolls over, which seems unlikely, he's not getting custody without going to court and presenting evidence.
    Quote:

    Quoting charleet83
    View Post
    Yes, there is proof. And I'm glad you worded your response the way you did. Because this is exactly what I do not have enough knowledge to understand (and I assume, neither does he, which is why he has not done anything).

    Claiming that mommy abused him three or more years ago - were there ever any arrests, charges or convictions - does not seem particularly relevant to the current situation. "I was so concerned about mom's mental health and violent outbursts that I fled the state for three years, leaving her with sole custody of our child, but I sent an occasional gift and talked to the child on the phone a few times, so let's call it even"?
    Quote:

    Quoting charleet83
    "He's been free at ANY point to follow up with an enforceable visitation plan"

    What does that mean?? What exactly is an "enforceable visitation plan" and how does one "follow up with" it?

    It means that if he chose to do so, at any point in the past three years he could have taken responsibility for his past bad choices, dealt with his charges and probation violation, then sought visitation and, if necessary, enforced it through the court.
    Quote:

    Quoting charleet83
    In terms of mom, my question is, if he files for custody and she runs and never responds, what happens then?

    According to you, it means that he would "quit his job and abandon the first healthy job, life, etc, he has been able to secure for himself in years".

    Despite your characterization, I am skeptical that she has anything to fear from any attempt by him to get custody. But if he went back to California, filed for custody and mom took off, he could ask the court to consider granting him custody based upon her conduct.
    Quote:

    Quoting charleet83
    I think her being "unfit" can be proven by his recording their phone conversations and that being submitted as evidence.

    There could be issues getting secret tapes admitted into evidence in California; and he needs to check the laws of whatever state he's in to make sure his recordings were lawfully made. Generally speaking, such recordings are of limited value - the parent who makes them knows he's being recorded, so he is on his best behavior. Often the parent making the recording will goad the other parent. The recordings tend not to say much about actual parenting. And there can be real issues of why certain conversations weren't recorded or the recordings were "lost", when the content doesn't favor the parent making the recordings. Generally speaking, courts don't want to be asked to listen to hours of tape, hear bickering over whether a partially audible segment says one thing or another, hear argument over whether or not something is taken out of context, etc., when the parties can simply appear in court and testify.
    Quote:

    Quoting charleet83
    She has no employment...

    Just like him for the past three years. So what?
    Quote:

    Quoting charleet83
    ...is *homeless*...

    She's staying somewhere. How do you know she's homeless if you don't have any information about where she lives? And once again, the difference between her and him would appear to be that he recently found a place to live - which she may do, or may already have done.
    Quote:

    Quoting charleet83
    ...has a history of domestic violence charges...

    So he did call the police? She was arrested how many times? Convicted how many times? With the last incident being how many years ago?
    Quote:

    Quoting charleet83
    ...and has been married at least 3 times in 2 years...

    Who would have known that so many men wanted to marry violent, homeless, drug addicted, psychopathic single mothers? (Match.com?)

    If dad has actual evidence that mom's home environment is unstable, he will be free to present that if and when he returns to California to litigate custody issues.
    Quote:

    Quoting charleet83
    ...has a case file with Child Protective Services.

    Which was resolved in her favor. If the situation were so bad that a change of custody were warranted, dad should have acted then. As it stands, if he believes the situation was or is dire for the children, his failure to take action seems at best indifferent.
    Quote:

    Quoting charleet83
    Isn't that "unfit"?

    Not necessarily.
    Quote:

    Quoting charleet83
    He has a full time job, a place to live, and upon talking to a judge or to a third party, comes off as more mentally stable. Isn't that "fit"?

    Well, not to split hairs, but there is the bit about his being a wanted fugitive with a history of alcoholism and antisocial behavior who fled the state to avoid criminal charges and a probation violation, had no physical contact with his child for three years, lived a life of vagrancy, and is only just now getting around to paying support. So again, not necessarily.
  • 08-02-2012, 11:16 PM
    Dogmatique
    Re: Can You File for Cusotdy in a State Where the Child Has Never Lived
    Did this same judge also speak to Mom?
  • 08-03-2012, 11:50 AM
    charleet83
    Re: Can You File for Cusotdy in a State Where the Child Has Never Lived
    Wow, what an eye opener! I guess I did not realize how terrible this all must look from an outside perspective, which is good to know. I will advise my friend to be careful hiring an attorney who makes big promises in exchange for big fees.

    I guess my only final question is, what exactly constitutes "proof" of the mother's being unfit? I know that part of her housing situation involved bouncing around to different women's and family shelters, and according to her, they all kicked her out. Would testimony from individuals in leadership positions at these facilities, if they can be identified and can speak to her conduct toward others, count as proof? Would testimony from any mutual friends or family members from the past constitute proof? Would a court-ordered psychological screening that turned up mental illness constitute proof? What about if the child appears to suffer from developmental difficulties and those can be traced to the mother failing to provide an environment for social interaction and learning for the child? Apparently secretly recorded conversations are not the way to go. And there's a chance she may have fled CA herself because of a failure to comply with CPS requirements that allowed her to keep her child when she was previously retained.

    And what would proving him "fit" look like? Obviously, resolving past legal issues and making child support payments is the biggest deal. But having a full-time job and a stable home environment, if it could be shown that he has those and she does not, would also seem like a big deal..

    Thanks again for such detailed responses!
  • 08-03-2012, 11:59 AM
    Dogmatique
    Re: Can You File for Cusotdy in a State Where the Child Has Never Lived
    Couch-surfing does not equate to unfit.

    Seriously - parents in homeless shelters have been able to attain and retain custody of their children.

    Good luck proving that the child has difficulties directly caused by Mom. <---- Not happening.

    I am not seeing Dad getting custody here. Not at all.
  • 08-03-2012, 12:09 PM
    charleet83
    Re: Can You File for Cusotdy in a State Where the Child Has Never Lived
    Hmm... Not quite as thorough of a response. It was not couch-surfing. And parents in homeless shelters have also had to give up custody of their children, because being in shelters continuously over years and years usually corresponds to, or is caused by other problems that could influence one's capacity for taking care of a child.
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