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  1. #1
    Join Date
    Mar 2014
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    Question How to File for a Change of Venue in a Custody Case

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

    Hello All! I have joint legal custody of my daughter; my ex-husband has physical, but we have been splitting time 49/51% for years with no legal intervention. The original divorce decree/custody order is from the state of Maryland; we both moved to New York state (we live about 5 miles apart), and did move the support order/parenting plan to New York. I do not, however, have a separate document stating that the venue for custody is New York, which is causing some confusion...

    The situation prompting action is this: my daughter has been living with me for the past 9 months because I moved into her school district and her dad moved just outside of it. Both her father and I want to change her primary custody to reflect her current residence, as we are planning to maintain our current situation until she finishes high school. His main thing is he doesn't want it to be a huge legal hassle (we're hoping it can be accomplished in a single hearing.) Questions arising from this are:

    1. Do I need to file for a change of venue from Maryland to New York? If so, how would I go about that? I don't want to lawyer up because this is friendly and that might be interpreted as hostile; after many, many years working towards a healthy co-parenting relationship, I don't want to risk it. Can I just file a modification petition and list the order number form the support/parenting agreement order issued by New York a few years back?

    2. How likely (as far as anyone can guess) is New York state to take issue with an uncontested modification of custody due to change of address to facilitate consistency of school district? There is no history of issues that would demonstrate unfitness on the part of either parent.

    3. I would like to request a decreased amount of support on the basis of our 51/49 time split and the fact that we split all of her costs down the middle. I know that support is not an option, but would it be reasonable to request reduced support in this case, and if so, how would one go about it? He is very financially supportive and I don't want to bleed him.

    Many thanks in advance for your suggestions and feedback.

  2. #2
    Join Date
    Feb 2014
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    Default Re: Possible Venue Change.what to File

    Quote Quoting alyasjane
    View Post
    My question involves a child custody case from the State of: New York

    Hello All! I have joint legal custody of my daughter; my ex-husband has physical, but we have been splitting time 49/51% for years with no legal intervention. The original divorce decree/custody order is from the state of Maryland; we both moved to New York state (we live about 5 miles apart), and did move the support order/parenting plan to New York. I do not, however, have a separate document stating that the venue for custody is New York, which is causing some confusion...

    The situation prompting action is this: my daughter has been living with me for the past 9 months because I moved into her school district and her dad moved just outside of it. Both her father and I want to change her primary custody to reflect her current residence, as we are planning to maintain our current situation until she finishes high school. His main thing is he doesn't want it to be a huge legal hassle (we're hoping it can be accomplished in a single hearing.) Questions arising from this are:

    1. Do I need to file for a change of venue from Maryland to New York? If so, how would I go about that? I don't want to lawyer up because this is friendly and that might be interpreted as hostile; after many, many years working towards a healthy co-parenting relationship, I don't want to risk it. Can I just file a modification petition and list the order number form the support/parenting agreement order issued by New York a few years back?

    2. How likely (as far as anyone can guess) is New York state to take issue with an uncontested modification of custody due to change of address to facilitate consistency of school district? There is no history of issues that would demonstrate unfitness on the part of either parent.

    3. I would like to request a decreased amount of support on the basis of our 51/49 time split and the fact that we split all of her costs down the middle. I know that support is not an option, but would it be reasonable to request reduced support in this case, and if so, how would one go about it? He is very financially supportive and I don't want to bleed him.

    Many thanks in advance for your suggestions and feedback.
    My suggestion: Read this.

    And this.

    Your looking to domesticate an out-of-state order and file a stipulated one.

  3. #3
    Join Date
    Mar 2014
    Posts
    8

    Default Re: Possible Venue Change.what to File

    Quote Quoting BooRennie
    View Post
    My suggestion: Read this.

    And this.

    Your looking to domesticate an out-of-state order and file a stipulated one.
    Thanks for the links...I've already looked through most of that information, but I'm still unclear on what forms/order of filing would be required. So...could I use the standard NY state DIY form GF-40A for request of modification, and stipulate that I am additionally looking for NY to serve as venue, on the grounds that all parties are residing in New York (this is documented on the domesticated New York support order)? Or do I need to fill out/file 2 separate forms?

    These forms are all so acrobatic...thanks again!

    - - - Updated - - -

    Oh my...to make matters more complicated, I've just realized there is no explicit/separate custody order; the divorce decree just incorporated our parenting agreement, which says that my daughter would live with her dad until such time as we revisited the agreement. So...now I'm really uncertain as to what documents should be cited!

    - - - Updated - - -

    One final amendment: my support modification may imply change of venue. It states that
    "It appears that under the terms of the judgment the Circuit Court for XXXXXXX County has not retained exclusive urisdiction to modify the judgement..." and "It is further order that except as modified herein, all other terms of the prior Judgement of divorce dated XXX, XX, XXXX are herby continued in full force and effect."

    Can I just reference the file/docket number for this case, as it acknowledges and appears to incorporate the divorce decree, which is the only record for the custody arrangement?

  4. #4
    Join Date
    Oct 2006
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    16,474

    Default Re: Possible Venue Change.what to File

    Quote Quoting alyasjane
    View Post
    Thanks for the links...I've already looked through most of that information, but I'm still unclear on what forms/order of filing would be required. So...could I use the standard NY state DIY form GF-40A for request of modification, and stipulate that I am additionally looking for NY to serve as venue, on the grounds that all parties are residing in New York (this is documented on the domesticated New York support order)? Or do I need to fill out/file 2 separate forms?

    These forms are all so acrobatic...thanks again!

    - - - Updated - - -

    Oh my...to make matters more complicated, I've just realized there is no explicit/separate custody order; the divorce decree just incorporated our parenting agreement, which says that my daughter would live with her dad until such time as we revisited the agreement. So...now I'm really uncertain as to what documents should be cited!

    - - - Updated - - -

    One final amendment: my support modification may imply change of venue. It states that
    "It appears that under the terms of the judgment the Circuit Court for XXXXXXX County has not retained exclusive urisdiction to modify the judgement..." and "It is further order that except as modified herein, all other terms of the prior Judgement of divorce dated XXX, XX, XXXX are herby continued in full force and effect."

    Can I just reference the file/docket number for this case, as it acknowledges and appears to incorporate the divorce decree, which is the only record for the custody arrangement?
    You might want to tell your ex that if you use an attorney to handle the case it might not be necessary for the two of you to go to court at all. When an attorney submits a fully stipulated agreement to the courts, judges often sign off on it without ever holding a hearing. The attorney will also know exactly what paperwork to file to deal with the jurisdictional issue as well.

  5. #5
    Join Date
    Mar 2014
    Posts
    8

    Default Re: Possible Venue Change.what to File

    What weight does a notarized stipulated agreement carry, and could it be used in place of filing for things like IRS status or summer camp registration? We are both tight on cash and tend to manage things mostly between ourselves (we split costs evenly), I just want to be able to claim the EIC, apply for YMCA day camp assistance, and have some documentation of our agreement if something ever went sour. Right now I'm thinking we notarize a stipulated agreement and then have an attorney submit it for us in the fall, when I have a bit more money. Would it be weird for us to go to an attorney together for that? Would it present any conflict of interest?

    Many thanks for that reply--it was really helpful!

  6. #6
    Join Date
    Oct 2006
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    Default Re: Possible Venue Change.what to File

    Quote Quoting alyasjane
    View Post
    What weight does a notarized stipulated agreement carry, and could it be used in place of filing for things like IRS status or summer camp registration? We are both tight on cash and tend to manage things mostly between ourselves (we split costs evenly), I just want to be able to claim the EIC, apply for YMCA day camp assistance, and have some documentation of our agreement if something ever went sour. Right now I'm thinking we notarize a stipulated agreement and then have an attorney submit it for us in the fall, when I have a bit more money. Would it be weird for us to go to an attorney together for that? Would it present any conflict of interest?

    Many thanks for that reply--it was really helpful!
    An attorney cannot represent both of you, but if you are completely in agreement then it shouldn't matter if the attorney only represents one of you.

    Also, the IRS rules don't care what the legal paperwork says. All the IRS cares about is whether or not you can prove that the child is actually residing with you for the majority of the time. If the child is, then you are entitled to claim EIC. If the child is not, then you are not no matter what the legal paperwork says. If its a true 50/50 situation then nobody may be eligible for EIC.

  7. #7
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    Default Re: Possible Venue Change.what to File

    Out of sheer curiosity, assuming it's not a leap year, surely one parent must have more overnights than the other?

  8. #8
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    Oct 2006
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    Default Re: Possible Venue Change.what to File

    Quote Quoting Dogmatique
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    Out of sheer curiosity, assuming it's not a leap year, surely one parent must have more overnights than the other?
    Yes, and that argument absolutely can work if the parents have well documented/tracked evidence of the actual time they each had the children. However, if only one of them qualifies income-wise for EIC, and its not the one who can document the most overnights that year, then neither will be eligible for EIC.

  9. #9
    Join Date
    Mar 2014
    Posts
    8

    Default Re: Possible Venue Change.what to File

    I definitely have her more overnights--she's on my lease and she's registered for school from my address, and I usually take her out of town for a decent chunk of summer vacation. I talked to a lawyer buddy who used to work in NY and my ex, and we're just going to go with the notarized stipulated agreement; the ex just bought a house so he isn't going anywhere, there's no interpersonal conflict, everybody is already getting what they want, and the notarized doc is another layer of support for the IRS that I can also use for non-governmental proof for things like the YMCA.

    Thanks very much for helping me think through this

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