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  1. #1
    Join Date
    Aug 2012
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    3

    Question How to Figure Out Where to File for Custody

    My question involves a child custody case from the State of: KY, CO

    I'll try to be as concise as possible-

    Baby was conceived in CO out of wedlock from a very short non-serious relationship... while mom was pregnant she moved to KY where she has some family... While mom was pregnant in KY, baby's dad moved back to NV where he has most of his family and a job opp.

    Dad is not on birth certificate but has dna test and baby is now 8 months old. Dad flew mom and baby to NV to visit in August (amongst other visits) and mom ended up going to jail for domestic battery - now has a conviction against her.

    Mom has kept baby away from dad since August. No skype, no pics, nothing...doesn't even want child support for some reason.

    Now the wrinkle- Dad was one day away from dropping a 2k retainer check to a KY lawyer only to find out that mom had moved with the baby BACK to CO a month prior. Baby lived in KY for 6.5 months, now lives in CO for 2.

    Does daddy need to get a lawyer in CO, KY? How will it work with the birth certificate and visitation? Dad wants to see his daughter as much as possible even if it means move back to CO.


    Another wrinkle- Daddy has an 80k per year job in NV (very tough to leave) while mom is living in CO and is 2 months pregnant again... by a man who lives in KY. Mom isn't 21 yet or employed. How does dad go ahead and maximize his time with his daughter? Will it still be possible to keep the 80k job and get decent visitation with the child? And what if mom moves back to KY if daddy decides to move to CO? It doesn't seem like dad should have to play such a cat and mouse game to be with his daughter, especially when he's willing and eager to fulfill his fatherly obligations....


    but "seeming" means nothing and that's why I am here asking you caring folks my questions!

    Thank you for your time.


    ps- does the fact that in 6/2013 mom will have no job, a 14 month old, and a newborn have any weight towards the father when determining child custody?

  2. #2
    Join Date
    Apr 2009
    Location
    Somewhere near Canada
    Posts
    35,894

    Default Re: Multiple States-Visitation and Jurisdiction

    Dad's had every chance to file for visitation - can't blame Mom for his inaction. No, Mom's lack of work, and a newborn, have absolutely nothing to do with a custody determination.

    Dad needs to file in KY - immediately. He needs to establish paternity, and custody/visitation. Mom has been the child's primary caregiver though and while that's not everything in an initial custody determination, it WILL weigh heavily.

  3. #3
    Join Date
    Sep 2005
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    Behind a Desk
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    98,846

    Default Re: How to Figure Out Where to File for Custody

    Quote Quoting Samsung12
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    Now the wrinkle- Dad was one day away from dropping a 2k retainer check to a KY lawyer only to find out that mom had moved with the baby BACK to CO a month prior. Baby lived in KY for 6.5 months, now lives in CO for 2.
    Dad should talk to his lawyer in Kentucky.
    Quote Quoting Samsung12
    Does daddy need to get a lawyer in CO, KY?
    Dad will need a lawyer in the state in which he intends to litigate, and from what you've told us that will be either Colorado or Kentucky. Depending upon the full facts, and mom's possible reactions to being served with a paternity/custody case, dad needs to consider what mom will do. Will she agree that she has abandoned all connection with Kentucky, such that the case should be heard in Colorado? Or will she respond to a filing in Colorado by rushing back to Kentucky and claiming that she was on an extended vacation in Colorado but did not abandon her or the child's Kentucky domicile?

    The fundamental question for jurisdiction is, "What is the child's 'home state'?"
    Quote Quoting CRS 14-13-102(7)
    "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. In the case of a child less than six months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period.
    Quote Quoting CRS 14-13-201. Initial child-custody jurisdiction
    (1) Except as otherwise provided in section 14-13-204, a court of this state has jurisdiction to make an initial child-custody determination only if:

    (a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

    (b) A court of another state does not have jurisdiction under a provision of law adopted by that state that is in substantial conformity with paragraph (a) of this subsection (1), or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision of law adopted by that state that is in substantial conformity with section 14-13-207 or 14-13-208, and:

    (I) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

    (II) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;

    (c) All courts having jurisdiction under a provision of law adopted by that state that is in substantial conformity with paragraph (a) or (b) of this subsection (1) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under a provision of law adopted by that state that is in substantial conformity with section 14-13-207 or 14-13-208; or

    (d) No court of any other state would have jurisdiction under the criteria specified in a provision of law adopted by that state that is in substantial conformity with paragraph (a), (b), or (c) of this subsection (1).
    (2) Subsection (1) of this section is the exclusive jurisdictional basis for making a child-custody determination by a court of this state.

    (3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child-custody determination.
    The argument for bringing the case in Colorado would be that the break in domicile resulting from the child's permanent relocation from Kentucky to Colorado takes Kentucky out of the language, "at least six consecutive months immediately before the commencement", and thus that no other state has jurisdiction.

    If I were dad in Nevada, I would be thinking "Colorado's a lot closer," so that's probably where I would prefer to try the case, but other issues can factor in.
    Quote Quoting Samsung12
    How will it work with the birth certificate and visitation?
    If paternity is established through litigation, the order establishing paternity can be registered with the department of vital records in the state in which the child was born, consistent with its requirements for the submission of out-of-state orders and consistent with its policies for requests for the correction of birth records following a finding of paternity.

    Visitation will be ordered by the court that decides the custody and visitation case.
    Quote Quoting Samsung12
    Dad wants to see his daughter as much as possible even if it means move back to CO.
    Or Kentucky? If dad wishes and the facts will support it, dad can attempt to become the primary custodian.
    Quote Quoting Samsung12
    Will it still be possible to keep the 80k job and get decent visitation with the child?
    We're not in a position to answer that.

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