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  1. #1
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    Unhappy Interstate Issues with Restraining Order and Custody

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

    Ten months ago I left my homestate and ex spouse due to domestic violence. I relocated to a new state and immediately got a restraining order and sole custody granted to me and California taking emergency jurisdiction over the matter. Then once we were here for 6 months and became residents the custody order was finalized with a three year DVRO put in place. My ex spouse did participate in one of the hearings and was properly served every time with proof of service filed each time. Not too long ago I filed for divorce in my home state of NY.

    The other day I found out that my ex had filed first but also was trying to get me to bring the kids back to NY and claimed he knew nothing about any court proceedings out here. He was able to get it as far as having the judge set out a warrant for me to return the kids which my lawyer was able to get vacated by stating there was the DVRO and custody orders already in place out here. She now has requested I get her all documents and transcripts showing my ex was in fact aware of the proceedings out here. His attorney and mine are due to meet in front of the divorce judge in August over the matter.

    My question is, is there any grounds my husband could get the kids returned when I did everything legally out here to get the RO and custody and we now have become residents here? California should now have full jurisdiction over the kids. My lawyer out here at the time assured me everything was done completely and that if he wanted to try to claim. He never knew about anything he shouldn't have participated in a hearing which acknowledged that he was aware of what was going on. He has chosen to not exercise any visitation or facetime calls which were granted. I'm very scared of losing my children due to not being aware of some loophole when I was told that everything was in place legally to keep us safe.

  2. #2
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    Default Re: Interstate Issues with Already Existing Ro and Custody

    The outcome of the child custody proceeding is not affected by the procedural issues that preceded the hearing. With issues of jurisdiction resolved, the court will look at evidence relevant to custody.

    Your lawyer is apparently concerned that the court may lack jurisdiction under the UCCJEA, because emergency jurisdiction is about stabilizing a situation before children are returned to their state of domicile. She wants to try to prove that the children's domicile was changed to California such that California could properly assume jurisdiction over the underlying custody case at the six month mark. Focus on getting your lawyer that documentation.

  3. #3
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    Default Re: Interstate Issues with Already Existing Ro and Custody

    Quote Quoting Mr. Knowitall
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    The outcome of the child custody proceeding is not affected by the procedural issues that preceded the hearing. With issues of jurisdiction resolved, the court will look at evidence relevant to custody.

    Your lawyer is apparently concerned that the court may lack jurisdiction under the UCCJEA, because emergency jurisdiction is about stabilizing a situation before children are returned to their state of domicile. She wants to try to prove that the children's domicile was changed to California such that California could properly assume jurisdiction over the underlying custody case at the six month mark. Focus on getting your lawyer that documentation.
    How does the restraining order that also includes the children play into it all?

  4. #4
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    Default Re: Interstate Issues with Already Existing Ro and Custody

    I have to ask, if you are a legal resident of CA why are you filing for divorce in NY? Why not file in CA?

  5. #5
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    Default Re: Interstate Issues with Already Existing Ro and Custody

    Quote Quoting EShear0715
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    How does the restraining order that also includes the children play into it all?
    Under normal circumstances, the court with emergency temporary jurisdiction will communicate with the court that has continuing, exclusive jurisdiction to address any issues of safety.

  6. #6
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    Default Re: Interstate Issues with Already Existing Ro and Custody

    More specifically I should have asked how does the restraining order come into play since in California it was granted for a 3 year period and in court it was also explained to my ex spouse that with this restraining order sole custody is also granted because here it just part of the guidelines that are the RO. There was then another hearing to address the request for Order of custody once we had been here for 6 months that my ex didn't participate in and the same orders from the permanent RO hearing were continued there.

  7. #7
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    Default Re: Interstate Issues with Restraining Order and Custody

    Your attorney would not have been able to get the warrant vacated if your ex was going to have any real chance of getting the children returned to NY. California has taken jurisdiction and made permanent orders. Your children are now legal residents of CA and NY has no jurisdiction to make custody orders.

    You should have filed for divorce in CA.

  8. #8
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    Default Re: Interstate Issues with Restraining Order and Custody

    Quote Quoting llworking
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    Your attorney would not have been able to get the warrant vacated if your ex was going to have any real chance of getting the children returned to NY. California has taken jurisdiction and made permanent orders. Your children are now legal residents of CA and NY has no jurisdiction to make custody orders.

    You should have filed for divorce in CA.
    I tried to file here but my attorney here who handled the restraining order and custody said since my ex spouse has no ties here that I couldn't file here. He was the one who filed for divorce in NY before I was able to file there so now we (my attorney and I) are answering to what he filed. In terms of the custody of the kids issue it's only being met in chambers to provide proof I believe she said it's not an actual hearing on the complaint.

  9. #9
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    Default Re: Interstate Issues with Restraining Order and Custody

    Quote Quoting EShear0715
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    I tried to file here but my attorney here who handled the restraining order and custody said since my ex spouse has no ties here that I couldn't file here. He was the one who filed for divorce in NY before I was able to file there so now we (my attorney and I) are answering to what he filed. In terms of the custody of the kids issue it's only being met in chambers to provide proof I believe she said it's not an actual hearing on the complaint.
    Then stop worrying about that part of it. Get the evidence to your attorney and then put it out of your mind.

  10. #10
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    Default Re: Interstate Issues with Restraining Order and Custody

    Quote Quoting EShear0715
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    More specifically I should have asked how does the restraining order come into play since in California
    You will need to have your lawyer review the order and advise you.
    Quote Quoting llworking
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    Your attorney would not have been able to get the warrant vacated if your ex was going to have any real chance of getting the children returned to NY.
    The question of whether or not the warrant is valid is separate from the question of custody. You can make assumptions from the facts as presented to us, but of itself the vacation of the warrant is not indicative of much of anything.
    Quote Quoting llworking
    California has taken jurisdiction and made permanent orders.
    Probably so, based upon the facts as shared, but it is imperative that the OP obtain the documentation requested by her lawyer so as to resolve the court's concerns about jurisdiction.
    Quote Quoting EShear0715
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    I tried to file here but my attorney here who handled the restraining order and custody said since my ex spouse has no ties here that I couldn't file here.
    You can file for divorce based upon your meeting the jurisdictional requirements of the state and county where you file, no matter where your spouse resides -- that will get you an order declaring that your marriage is terminated. However, if the marital estate is in another state, or if another state has jurisdiction over custody issues, unless your spouse agrees to have the case heard where you file you may have to bring an ancillary action in the other state in order to get a judgment on those issues.

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