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  1. #1
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    Default Emergency Removal or Modification

    My question involves a child custody case from the State of: Oklahoma

    Hello all. I have joint custody with my child's mother with her being the CP. in 2005, the mother got a felony for drug possession and we and our lawyers signed an agreement that I would have physical custody of my daughter and her mom would have supervised visitation. Apparently this agreement was never signed by the judge but the mother and I have been following our agreement for the last 8 years.

    In January of 2011, my daughters mother removed her from the school I had her enrolled in and filed a writ using the original decree showing her as the CP and said that I was trying to kidnap the child and wouldn't return her per our visitation schedule. She has since had my daughter and she is not following the court ordered visitation schedule. I've already filed a motion to enforce visitation but she still won't comply consistently.

    My question is: Is the agreement between us and our lawyers evidence enough to get my daughter back and if so how should I file? A motion to modify or an emergency order?

  2. #2
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    Default Re: Modification of Custody Case: Emergency Removal or Modification

    Quote Quoting Mrstll95
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    My question involves a child custody case from the State of: Oklahoma

    Hello all. I have joint custody with my child's mother with her being the CP. in 2005, the mother got a felony for drug possession and we and our lawyers signed an agreement that I would have physical custody of my daughter and her mom would have supervised visitation. Apparently this agreement was never signed by the judge but the mother and I have been following our agreement for the last 8 years.

    In January of 2011, my daughters mother removed her from the school I had her enrolled in and filed a writ using the original decree showing her as the CP and said that I was trying to kidnap the child and wouldn't return her per our visitation schedule. She has since had my daughter and she is not following the court ordered visitation schedule. I've already filed a motion to enforce visitation but she still won't comply consistently.

    My question is: Is the agreement between us and our lawyers evidence enough to get my daughter back and if so how should I file? A motion to modify or an emergency order?
    I would not think that an agreement that was not signed off on by a judge would be valid...not in this set of circumstances. Its not something that would qualify as a contract.

    I think that you should file a motion to modify custody based on the status quo. You have had the child for the last 8 years and that is a lot of status quo. I don't think that mom's felony would be of much import unless she has had newer convictions over the last 8 years. This situation also doesn't seem like it would qualify as an emergency, but you could always run that by a local attorney.

  3. #3
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    Default Re: Modification of Custody Case: Emergency Removal or Modification

    If mom has had child since January 2011, doesn't she have status quo now? Action should have been taken long ago.

  4. #4
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    Default Re: Modification of Custody Case: Emergency Removal or Modification

    Quote Quoting dad-1234
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    If mom has had child since January 2011, doesn't she have status quo now? Action should have been taken long ago.
    The attorney advised me that the document was sufficient and didn't require going before the judge. Which is why I'm posting in this forum to see what my next step should be.

  5. #5
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    Default Re: Modification of Custody Case: Emergency Removal or Modification

    Quote Quoting dad-1234
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    If mom has had child since January 2011, doesn't she have status quo now? Action should have been taken long ago.
    Not only that, the 'emergency' came and went two years ago.
    Quote Quoting Mrstll95
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    The attorney advised me that the document was sufficient and didn't require going before the judge. Which is why I'm posting in this forum to see what my next step should be.
    Who is "the attorney" and when did "the attorney" make that statement? Why does "the attorney" believe that a document, executed eight years ago, not turned into a court order, and that contradicts the status quo you have allowed to exist for the past two years, would trump the court's actual order? If "the attorney" is presently advising you and representing you, you should be posing these questions to your lawyer.

  6. #6
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    Default Re: Modification of Custody Case: Emergency Removal or Modification

    Quote Quoting Mr. Knowitall
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    Not only that, the 'emergency' came and went two years ago.

    Who is "the attorney" and when did "the attorney" make that statement? Why does "the attorney" believe that a document, executed eight years ago, not turned into a court order, and that contradicts the status quo you have allowed to exist for the past two years, would trump the court's actual order? If "the attorney" is presently advising you and representing you, you should be posing these questions to your lawyer.
    I have been in court since my daughter left my home. The attorney I was referring to is no longer my attorney and I haven't had any luck getting in contact with him. Like I stated previously I am trying to figure out if I need to file for emergency or just a modification. I agree with pp setting a trial date for a modification hearing is probably best.

    - - - Updated - - -

    The attorney was my attorney from eight years ago and that's when he told me it wasn't necessary to bring the document before the judge.

  7. #7
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    Default Re: Modification of Custody Case: Emergency Removal or Modification

    Quote Quoting Mrstll95
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    I have been in court since my daughter left my home. The attorney I was referring to is no longer my attorney and I haven't had any luck getting in contact with him. Like I stated previously I am trying to figure out if I need to file for emergency or just a modification. I agree with pp setting a trial date for a modification hearing is probably best.

    - - - Updated - - -

    The attorney was my attorney from eight years ago and that's when he told me it wasn't necessary to bring the document before the judge.
    I didn't catch that it had been two years that mom has had the child. That changes my opinion dramatically. Your prior document is totally worthless because you yourself have not attempted to enforce it for two years.

    I am not even sure that a modification would get you anywhere at this point. You no longer have status quo, and apparently mom's drug conviction was 8 years ago AND you haven't taken any action for two years. How old is the child now?

  8. #8
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    Default Re: Modification of Custody Case: Emergency Removal or Modification

    Quote Quoting llworking
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    I didn't catch that it had been two years that mom has had the child. That changes my opinion dramatically. Your prior document is totally worthless because you yourself have not attempted to enforce it for two years.

    I am not even sure that a modification would get you anywhere at this point. You no longer have status quo, and apparently mom's drug conviction was 8 years ago AND you haven't taken any action for two years. How old is the child now?
    My daughter is 9 now. She lived with me from age 1 to 8. Over the last year (her mom removed her from my home in jan 2012) I've filed 3 different motions and they haven't gone through. The case is basically held up until me or my daughters mother files again. I'm just trying to figure out what the best course of action is. Things cannot continue this way with the court ordered visitation schedule not being followed and my evidence of her living with me being unseen.

    - - - Updated - - -

    My attempt to enforce the document was my motion to enforce agreed modification document. I filed that in April 2012. The judge said that we had to go by the original decree until someone files again. I guess for a trial date?

  9. #9
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    Default Re: Modification of Custody Case: Emergency Removal or Modification

    Quote Quoting Mrstll95
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    In January of 2011, my daughters mother removed her from the school I had her enrolled in and filed a writ using the original decree showing her as the CP and said that I was trying to kidnap the child and wouldn't return her per our visitation schedule.
    Quote Quoting Mrstll95
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    Over the last year (her mom removed her from my home in jan 2012)....
    Not that it makes a tremendous amount of difference, as either way there's no basis for a court to issue an emergency order to address an issue that's existed for over a year, but you're giving two different dates a year apart.
    Quote Quoting Mrstll95
    I've filed 3 different motions and they haven't gone through.
    Which is to say, "You're doing it wrong". We don't know what you filed, we don't know why your motions failed. You would have to share that information with us. But if you've filed three motions over the course of a year and been shot down each time, it's safe to say you are well-past the point when you should have hired a lawyer to represent you.
    Quote Quoting Mrstll95
    I'm just trying to figure out what the best course of action is.
    Without knowing what has gone on in court - your three motions, and anything else that's relevant - we're not in a position to suggest a course of action. Consult a local family lawyer with the details.
    Quote Quoting Mrstll95
    My attempt to enforce the document was my motion to enforce agreed modification document. I filed that in April 2012.
    Okay, that's motion number one. And it was rejected because... you had never actually modified the order, and thus it was not enforceable? And then you filed motions #2 and #3 seeking what relief, on what basis, with what outcome?
    Quote Quoting Mrstll95
    The judge said that we had to go by the original decree until someone files again. I guess for a trial date?
    You were there, we weren't, so the thing to do would be for you to tell us what the court ordered rather than asking us to guess. That said, I've already given my best guess based upon the very small amount of information you've shared.

  10. #10
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    Default Re: Modification of Custody Case: Emergency Removal or Modification

    Quote Quoting Mr. Knowitall
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    Not that it makes a tremendous amount of difference, as either way there's no basis for a court to issue an emergency order to address an issue that's existed for over a year, but you're giving two different dates a year apart.

    Which is to say, "You're doing it wrong". We don't know what you filed, we don't know why your motions failed. You would have to share that information with us. But if you've filed three motions over the course of a year and been shot down each time, it's safe to say you are well-past the point when you should have hired a lawyer to represent you.

    Without knowing what has gone on in court - your three motions, and anything else that's relevant - we're not in a position to suggest a course of action. Consult a local family lawyer with the details.

    Okay, that's motion number one. And it was rejected because... you had never actually modified the order, and thus it was not enforceable? And then you filed motions #2 and #3 seeking what relief, on what basis, with what outcome?

    You were there, we weren't, so the thing to do would be for you to tell us what the court ordered rather than asking us to guess. That said, I've already given my best guess based upon the very small amount of information you've shared.
    2011 was a typo I didn't catch it. And all 3 motions were filed by an attorney. Guess I don't know the proper lingo for these type of sites. I'm not forum savvy I suppose. I'm actually considering representing myself in court because my attorney hasn't gotten much accomplished on my behalf. Not saying he's a bad attorney but I want to make sure I'm taking the right path to resolving this. I should just go with my gut and file again. I'm willing to do whatever it takes. Thanks for all of your opinions.

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