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Old 01-25-2012, 06:35 PM   #1
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Red face Out of State Relocation (already done)

Hi.

I'm new. I'm scared. I'm just trying to do what is best for my baby.

My STBXH and I have always struggled financially, and things didn't get any easier when we separated. I had been receiving unemployment while looking for a job (I stayed at home w/ my son during this time) and when we physically separated my unemployment ran out. I started receiving public assistance. Neither of us have any family in the area. My parents have continuously offered for me to come back home with my son so that we could get back on our feet. For a while I refused for a number of reasons. STBX has a job but after taxes, insurance, child support for his other child, etc., he barely makes ends meet and couldn't afford any additional expenses (child care, etc.).

I'll try to keep a long story short:
1) I did research and consulted with two different attorneys about what it would be like to go to court to get permission to move out of state with my child. All sources said it was unlikely that I would get permission but they said LEGALLY if there was no court order in place (and there wasn't), that I could move with my child and sort out a court order later. (I guess a "it's better to ask forgiveness than to beg for permission" thing ...)

2) I tried to negotiate with STBXH visitation schedules prior to moving and they just didn't seem like they would be in DS's best interest (one of them he suggested was six months with one parent and then six months with the other ... I personally don't think that completely uprooting him and changing his 'permanent residence' every six months is a good or stable idea ...)

3) I moved and filed papers here in the new state.

4) I'm scared and feel like ____.

I'm in no way attempting to alienate STBXH. I have offered to drive to his city of residence for one full weekend a month for him to have visitation with our son, plus at least weekly Skype dates, phone calls, etc., and lengthier visitations when he has longer periods of time off (vacations and whatnot). Plus, any time he has the chance to come here to visit he's certainly 'allowed' to do so. I realize that one weekend a month isn't a lot compared to every other week(end), but it's better than the six months he had been suggesting!

I feel that this is in the best interest for our child FOR NOW (and I plan to move back to the city where my STBX lives for when DS goes to school so we can share custody; he's 2 years old now) because this will afford us both the opportunity to get back on our feet. Here, DS has a nice, stable home surrounded by love and family, child care is taken care of by my mother, I'm not asking for child support from STBX (like I said, I want us both to be able to get back on our feet here). I can go back to school, work nights if I'd have to, or work a job that doesn't pay very well because I can save just about everything I make for the future. Likewise, STBX could save on child support and any additional expenses as well.

I don't know. I'm probably not even making sense here. My ex is understandably upset, but I just want to make this work. I filed papers when I first moved here for custody and STBX is telling me that DS isn't a legal resident of this state so the papers aren't legal and that I need to file back in our old state of residence — but we never had an official order before and now that we've moved here we're technically residents, right?

Any advice would be great ...
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Old 01-25-2012, 06:47 PM   #2
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Default Re: Out of State Relocation (already don

It sounds like you have the best interest of your child at heart and for that I commend you.

Someone more knowledgeable than I will be along, I am sure, about the particulars of residency and if you have to be there any length of time or whatever the case may be.

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Old 01-25-2012, 07:15 PM   #3
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Default Re: Out of State Relocation (already don

As far as I know, your X is correct that your child is not a resident and will not be for at least 6 months. Therefore, you would have to file in the state where you previously lived.

BUT, YOU don't have to file at all right now.

I have also heard the "Ask forgiveness later" theory....but not sure that will work since your X is well established as the father.

If you are not asking for CS, then I would wait and see if your X files anything...and I would be nice to him and accomidateing as much as possible in regards to visitation. It might be worth his while to cooperate if it will save him money and he still gets to see his child.

There might be a chance you could be accused of kidnapping - though I really doubt that or that it would be prosecuted - but he could possibly make you return...or at least return the child. I knew of one guy once who managed to force that issue.
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Old 01-25-2012, 07:32 PM   #4
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Default Re: Out of State Relocation (already don

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Originally Posted by Bluemoon View Post
As far as I know, your X is correct that your child is not a resident and will not be for at least 6 months. Therefore, you would have to file in the state where you previously lived.

BUT, YOU don't have to file at all right now.

I have also heard the "Ask forgiveness later" theory....but not sure that will work since your X is well established as the father.

If you are not asking for CS, then I would wait and see if your X files anything...and I would be nice to him and accomidateing as much as possible in regards to visitation. It might be worth his while to cooperate if it will save him money and he still gets to see his child.

There might be a chance you could be accused of kidnapping - though I really doubt that or that it would be prosecuted - but he could possibly make you return...or at least return the child. I knew of one guy once who managed to force that issue.

Thank you so much for your honesty.

I already filed papers here in the state that I've relocated to, so that's why I'm concerned about residency.

I am absolutely open to being as accommodating as possible with my STBX. Like I said, I didn't move to be spiteful or anything, and I want him to be a part of DS's life while we're up here as much as possible.

I'm afraid of the kidnapping thing. When I did the research and was told that I could legally take DS and move since there was no established court order I didn't consider that kidnapping would be a potential issue. But STBXH has brought it up several times and now I'm starting to worry. If I'm ordered to 'return' DS that wouldn't work because he doesn't have the financial means to support him and I don't have a job so it's not like I can pay any child support. And if I'm ordered to return, well, that'll be interesting because I have no way to support myself and would have to wait to be approved for public housing again or something.

I've been trying to look up what it takes to be a 'resident' and I've seen answers as simple as "You've moved there, so you're a resident" to 30-60 days of residency.
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Old 01-25-2012, 07:41 PM   #5
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Default Re: Out of State Relocation (already don

Well, the one thing I am just about positive about is that it will take 6 months for your child to be considered a resident there.

The kidnapping and all....I am nowhere near as sure about. It's usually ncp's who get accused of that, but because you were married and he is the legal father it's just something to be aware of.
I am quite certain your X is just blowing smoke.

Even in the case I mentioned, it was a mom who took their child and went home to Virginia from NY. They had been long divorced, but the Dad was well established in the boys life....and there WAS an order of visitation and custody of course.
He was able to make her return.

I would take the advice of the lawyers you consulted over my ideas for sure, except...did they tell you to file right away? Cause I am pretty sure that that will be pointless.

I'm sorry, I am in no way trying to make you any more scared. I honestly don't think you have a ton to worry about. I don't think you will be sought after criminally and if your X is a broke as you say then he won't be able to afford a lawyer to force you to return.

The irony is....and I'm not getting on your case, I know you did what you did because it was the best thing for your child...but technically, it was the "wrong" thing to do. Many sympathies will be with your X.
However, I have learned the hard way that just because something shouldn't be able to happen doesn't mean it can't. More often than not it can.
So, I think you will be fine.
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Old 01-25-2012, 07:42 PM   #6
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Default Re: Out of State Relocation (already don

Residency and Jurisdiction are two different things...

Welcome to our Hide Out!!!

Someone with more legal knowledge should be along pretty soon.
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Old 01-25-2012, 07:49 PM   #7
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Default Re: Out of State Relocation (already don

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Originally Posted by Bluemoon View Post
Well, the one thing I am just about positive about is that it will take 6 months for your child to be considered a resident there.

The kidnapping and all....I am nowhere near as sure about. It's usually ncp's who get accused of that, but because you were married and he is the legal father it's just something to be aware of.
I am quite certain your X is just blowing smoke.

Even in the case I mentioned, it was a mom who took their child and went home to Virginia. They had been long divorced, but the Dad was well established in the boys life....and ther WAS an order of visitation and custody of course.
He was able to make her return.

I would take the advice of the lawyers you consulted over my ideas for sure, except...did they tell you to file right away? Cause I am pretty sure that that will be pointless.
They didn't tell me to file right away. My parents encouraged me to file and we all jumped the gun, I think. I really hope I didn't shoot myself in the foot here.

I'm quite certain he's blowing smoke, too, because he's upset and angry (understandably). But I'm a have-all-my-bases-covered kind of person.

By the way, guys, thank you for not flaming me. I thought for sure I'd get yelled at to high Heaven. =\
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Old 01-25-2012, 08:03 PM   #8
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Default Re: Out of State Relocation (already don

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Originally Posted by nsearchofs0ul View Post
By the way, guys, thank you for not flaming me. I thought for sure I'd get yelled at to high Heaven. =\
You may yet, but not by we who have replied so far.
We do have a Dad who has been fighting to get his child back for a very long time now, though.
He may have some pretty strong feelings about it. Understandably.

But even his situation is not the same as yours. Odd, but I don't recall us ever having a situation exactly like yours. I would think it would be more common because I KNOW that it is very hard to get the court to give permission for you to move.
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Old 01-25-2012, 08:37 PM   #9
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Default Re: Out of State Relocation (already don

I can tell you I struggled with a similar situation. My ex moved us up to a state 2000 miles from our home. Then when I left him I found out about this 6 month residency rule. We had been living in this state for 8 months when I went to an attourny about custody. My mother went and saw one in our home state. Between the two of them we concluded that while I might be able to win home custody in my state it would be a very iffy situation. The federal law about children and their state of residency is pretty specific to 6 months. So I could move home and "hope" that he didn't file in the 6 months required to make it legal or he could file in the state we had moved to and I would have to go back up there.

I did file in the new state, but after consulting domestic violence counselors and my lawyer, I decided to file in that state, but go home to wait out him getting served. (he is bipolar and is very unpredictable and abusive) I didn't want him to know where we were until things had settled a little bit. I couldn't serve him because he wouldn't tell me where he lived and he was never at our old house, but he in turn served me with the same parental rights action AND what they call "absconding with the child"= kidnapping. I did keep my home in the other state and came back to it a month before the trial. I was able to show at the hearing that I didn't kidnap her I was escaping abuse, and trying to do what was best for our d.

My folks did the same thing and tried to pressure me into filling in their home state, which I consider ours as well, but in the eyes of the law it is different.

If you don't think he is going to file in your old state you may be fine, but he has 6 months to figure out how to do it and if he does then he can and he will be in the right as far as jurisdiction.
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Old 01-25-2012, 09:32 PM   #10
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Default Re: Out of State Relocation (already don

OK...First off...Welcome to The Board.

Now, As a single dad and have been through the legal system quite a bit, here's is what is likely.

Please do not take this as flaming but I am likely much older than you and more experienced in life.

First of all...YES, It could be considered Kidnapping.

Second...All he has to do is file ANYTHING in his state and the UCCJEA will step in and ANY judge will FORCE the child's return to that state.

Now, the fatherly thing...
You have CROSSED THE LINE with the relocation without the father's consent. If you are married, then you're doubly screwed because you abandoned the marriage and fled with the child.


and those lawyers that you consulted...REPORT THEM TO THE BAR!

Now...what you can do to correct it...is withdraw your petition for divorce in your new state since you are NOT a resident there and what you did is actually fraudulent and you could possibly be prosecuted criminally for it.

Once that is withdrawn, Establish residence, which requires 6 months continuous with a permanent address...with that if the Ex hasn't filed where he is at, then Federal Law and the UCCJEA would consider the child a resident of the state you're in with your parents and you can file there at that time.

Just keep in mind that if at ANY time your STBX files in the home state, you WILL be ordered to return the child to that state and to him. He will get an emergency custody order in his favor and if you're lucky, that state won't prosecute you.

Sorry but that's the facts.

I've been there..had it done to me and it's been close to 2 years down the road and still a few months away from getting my son back.
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Old 01-25-2012, 09:53 PM   #11
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Default Re: Out of State Relocation (already don

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Originally Posted by DaddyCakes View Post
OK...First off...Welcome to The Board.

Now, As a single dad and have been through the legal system quite a bit, here's is what is likely.

Please do not take this as flaming but I am likely much older than you and more experienced in life.

First of all...YES, It could be considered Kidnapping.

Second...All he has to do is file ANYTHING in his state and the UCCJEA will step in and ANY judge will FORCE the child's return to that state.

Now, the fatherly thing...
You have CROSSED THE LINE with the relocation without the father's consent. If you are married, then you're doubly screwed because you abandoned the marriage and fled with the child.


and those lawyers that you consulted...REPORT THEM TO THE BAR!

Now...what you can do to correct it...is withdraw your petition for divorce in your new state since you are NOT a resident there and what you did is actually fraudulent and you could possibly be prosecuted criminally for it.

Once that is withdrawn, Establish residence, which requires 6 months continuous with a permanent address...with that if the Ex hasn't filed where he is at, then Federal Law and the UCCJEA would consider the child a resident of the state you're in with your parents and you can file there at that time.

Just keep in mind that if at ANY time your STBX files in the home state, you WILL be ordered to return the child to that state and to him. He will get an emergency custody order in his favor and if you're lucky, that state won't prosecute you.

Sorry but that's the facts.

I've been there..had it done to me and it's been close to 2 years down the road and still a few months away from getting my son back.
I'm sorry for your situation. I appreciate your honesty on all fronts.

We've been separated for over a year and have been physically separated for almost a year (as the law in our state says we must be before the divorce can be final). I don't know how that might change anything in the divorce arena.

I didn't petition for divorce in my new state, just custody. But I can withdraw that? Okay ... okay ...

I'm trying not to hyperventilate here.
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Old 01-25-2012, 10:00 PM   #12
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Default Re: Out of State Relocation (already don

OK...
A few questions...

1. What State were you in? It sounds like you may be in the jurisdiction of MD regarding the separation issues.

2. As you are married to the toddler's daddy...are you still LEGALLY married to him?

3. Was anything filed in HIS state regarding separation? If NOT, then you're still legally married and not even separated in the court's eyes.

4. If you are legally married to someone, you CANNOT file just for custody.
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Old 01-25-2012, 10:06 PM   #13
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Default Re: Out of State Relocation (already don

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OK...
A few questions...

1. What State were you in? It sounds like you may be in the jurisdiction of MD regarding the separation issues.

2. As you are married to the toddler's daddy...are you still LEGALLY married to him?

3. Was anything filed in HIS state regarding separation? If NOT, then you're still legally married and not even separated in the court's eyes.

4. If you are legally married to someone, you CANNOT file just for custody.
1) Was in VA, now in PA.

2) Legally married, yes.

3) No ... neither of us had the money, so we thought we'd do it all at once when our year of physical separation was up.

4) Clearly neither of us knows what we're doing.
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Old 01-25-2012, 10:18 PM   #14
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Default Re: Out of State Relocation (already don

OK...
Based on this information...YOU'RE SCREWED!

1. In order for separation to be effective in the state of MD, you MUST File it with the courts. If you don't file it, it doesn't count under MD state law. We had a member here that went through it.

2. You are likely in violation of MD parental kidnapping statutes and you need to correct that IMMEDIATELY.

3. The father has the RIGHT to know his child! Your running away will cause you many legal issues. You can NOT keep him from the child...especially since you are legally married.

4. You MUST return to MD, get the visitation guidelines and allow him frequent visitation with his child. While there...get the LEGAL Separation files and get the MD court's approval to to remove the child to PA.

Withdraw your petition for custody in PA before you find yourself dealing with criminal charges in TWO states.

---------- Post added at 09:18 PM ---------- Previous post was at 09:17 PM ----------

OH...and to do it right in MD...see if your parents will pay for a Lawyer...

You really want a lawyer to handle this...and NOT one of those freaks that you consulted previously!
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Old 01-25-2012, 10:19 PM   #15
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Default Re: Out of State Relocation (already don

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OK...
Based on this information...YOU'RE SCREWED!

1. In order for separation to be effective in the state of MD, you MUST File it with the courts. If you don't file it, it doesn't count under MD state law. We had a member here that went through it.

2. You are likely in violation of MD parental kidnapping statutes and you need to correct that IMMEDIATELY.

3. The father has the RIGHT to know his child! Your running away will cause you many legal issues. You can NOT keep him from the child...especially since you are legally married.

4. You MUST return to MD, get the visitation guidelines and allow him frequent visitation with his child. While there...get the LEGAL Separation files and get the MD court's approval to to remove the child to PA.

Withdraw your petition for custody in PA before you find yourself dealing with criminal charges in TWO states.

It's VA, not MD. And I agree that STBXH has the right to know his child, which is why I had been planning on facilitating visitation and video chat and phone calls at every opportunity.

But I agree, I'm completely, utterly, and most definitely screwed.
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Old 01-25-2012, 10:21 PM   #16
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Default Re: Out of State Relocation (already don

Generally the states that have the mandatory 1 year legal separation require a court filing for the clock to begin.
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Old 01-25-2012, 10:22 PM   #17
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Default Re: Out of State Relocation (already don

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Generally the states that have the mandatory 1 year legal separation require a court filing for the clock to begin.
I wonder/hope/pray that there is a chance it can be "backdated" with evidence supporting my separate residence.
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Old 01-25-2012, 10:32 PM   #18
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Default Re: Out of State Relocation (already don

Well, the first thing you need to to is withdraw the PA filing and follow the law of the state of VA, which is also the child's LEGAL state of residence! The clerk of the court where you filed it at should be able to advise you of the procedure.

Once that is withdrawn, then you need to WAIT the 6 months to establish residency and file the DIVORCE, which will include custody, child support, and spousal support.

And HOPE that he doesn't file anything in VA.

If you withdraw in PA...before you get caught, then they likely will not prosecute you for fraud.

In addition, you need to start making trips to VA every weekend or at least every other weekend, for the child to spend time with Dad. Otherwise that could go against you as well.

The courts in ANY state don't like it when a married Mother keeps a child from his/her father "just because" she can!
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Old 01-25-2012, 10:40 PM   #19
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Default Re: Out of State Relocation (already don

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Well, the first thing you need to to is withdraw the PA filing and follow the law of the state of VA, which is also the child's LEGAL state of residence! The clerk of the court where you filed it at should be able to advise you of the procedure.

Once that is withdrawn, then you need to WAIT the 6 months to establish residency and file the DIVORCE, which will include custody, child support, and spousal support.

And HOPE that he doesn't file anything in VA.

If you withdraw in PA...before you get caught, then they likely will not prosecute you for fraud.

In addition, you need to start making trips to VA every weekend or at least every other weekend, for the child to spend time with Dad. Otherwise that could go against you as well.

The courts in ANY state don't like it when a married Mother keeps a child from his/her father "just because" she can!
I'll be attempting to rectify everything as best as possible in the morning. And please be aware that I'm not doing this to keep my child from his father in any way shape or form.
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Old 01-25-2012, 10:48 PM   #20
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Default Re: Out of State Relocation (already don

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I'll be attempting to rectify everything as best as possible in the morning. And please be aware that I'm not doing this to keep my child from his father in any way shape or form.
That is good to hear.

Also, many states are starting to lean towards the Father and more parenting time than before.

As it seems that there are no issues with drugs, criminal activity, or abuse...you need to get this taken care of as quickly as you can before it bites you in the but criminally!
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Old 01-25-2012, 11:24 PM   #21
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Default Re: Out of State Relocation (already don

Welcome!
Awwww! I read this & I hear a sincerely good mother who is trying her best!
Sometimes things have to be sacrificed on the road to success and it sounds like you are willing to make all those sacrifices. You present as a very selfless person who has everyone involved best interests in mind (even thou it may not be seen that way to him right now).
I am not knowledgeable on the legal stuff, surprised she hasn't appeared yet...
Your tone is so peaceful...
Hang in there, keep your head held high, knowing you are trying your best. All your good intentions will pay off!
Hugs!

---------- Post added at 10:24 PM ---------- Previous post was at 10:22 PM ----------

I wanted to add....so no-one here thinks I love them any less, that you have found a wonderous place.
A place full of great single mothers and fathers like who are all just trying to make it work.
OK-enough of the mushies....homework for me :-)
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Old 01-25-2012, 11:59 PM   #22
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Default Re: Out of State Relocation (already don

I think you also need to breath. How far of a drive are you? Your ex knows exactly where you are, correct? He clearly has your number, address, Skype, etc. Kidnapping well I'm not fully convinced this will be taken as that just yet.
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Old 01-26-2012, 12:12 AM   #23
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Default Re: Out of State Relocation (already don

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I think you also need to breath. How far of a drive are you? Your ex knows exactly where you are, correct? He clearly has your number, address, Skype, etc. Kidnapping well I'm not fully convinced this will be taken as that just yet.
The drive is about 6 or 7 hours. He has my phone number, email address, I think he still has my parents' numbers, and yes, Skype address (I think, if not, he's more than welcome to have it). I sent him pictures of the baby today. Like I said, I'm not trying to alienate him at all.

Like I said earlier I'm going to be driving down overnight to give STBX a full weekend with DS (both full days) while I still can, and Skype dates and phone dates and the like. I know it's not ideal, but considering all of the circumstances (financially and otherwise), I want to do the best I can.

You're right, I do need to breathe. I just want to do as much of the right thing as I can considering the circumstances.
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Old 01-26-2012, 12:30 AM   #24
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Default Re: Out of State Relocation (already don

Okay, take what I say as a "whatever or not". I have a legal degree from an accredited law school with an emphasis in family law.

I completely and utterly disagree with DC on all fronts. I don't think that it is necessarily a bad thing you moved away. BUT you need to realize you are going to spend a LOT less time with your child then you like. Dad is likely going to get baby for LONG chunks of time.

Since PA and VA are border states, and you guys are 6 hours a part, this may not be an issue.

So here are a few things that you need to think about.

1. Residency has NOTHING to do with this. Legal Jurisdiction does. Jurisdiction is the ability of a court to make an out of state citizen to come and appear in that state. PA has NO JURISDICTION over your ex. And technically, the court has no jurisdiction over your child for six months.

However, the court may not do anything. Why? Your ex has to OBJECT to jurisdiction for it to be sent back to the other state.

As I see it, you are really only screwed IF dad is aware of this, or is smart enough to get a lawyer. Then you are in for the fight of your life.

2. I think you should be very, very aware that the judge could yank your rug out from under you if dad is smart. You tipped your hand. If he went to an attorney, and that one were me, I would IMMEDIATELY FILE in my state and file for legal custody stating that it is your intent to take the child and move to another state. That you even attempted to file for custody in that state. And I would motion the court to issue you an order to immediately 1) return the child into my custody with supervised visitation until I think you are no longer a flight risk, or in lieu of that 2) move back with said child and be under a continued court order to not leave the state without the permission of the court.

3. Please do not turn the lawyers into the bar. They did nothing unethical and it will be a waste of your time and effort. They gave you okay legal advice given your circumstances. Honestly, I might have told you to take the child and try it. There is nothing to lose and you position yourself better. Also, their jobs as attorney's are to YOU, not to the baby daddy or the baby.

4. EVERYONE ELSE STOP SCARING HER! There is NO VIABLE charge of kidnapping here. Married couples can take children from out of state without consent and even against the consent of a married spouse. No one has custody of either. This is a complete and total civil situation NOT a criminal one.
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Old 01-26-2012, 12:35 AM   #25
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Default Re: Out of State Relocation (already don

Hey now, some of us told her to breath a bit LMAO
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Old 01-26-2012, 12:37 AM   #26
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Default Re: Out of State Relocation (already don

PS: If I were your lawyer, I would recommend you do not withdraw your request. You can do that if and when the court says no. YOU HAVE DONE NOTHING WRONG. Period.

I might not make the decisions you have. Others may not. BUT this is not a judgment call for any of us to make.

Also: I need to point out to everyone on here - be careful. Some are reaching into the realm of the unauthorized practice of law and giving very wrong and incorrect advice. In this case, this turned into a moral argument not what she asked.

So, that being said, wait to see what ex does. He needs to answer the papers. If he doesn't it defaults and you are good to go. If he does and the judge dismisses, then big deal -- what are you out.

Again this is not RESIDENCY but Jurisdiction. I would guess after rereading your ex has talked to a lawyer. He is not threatening and wants to not "lawyer you" in another state to file the motion to dismiss. I say play hardball and make him spend those initial legal fees and sit back and bide your time. While you are biding your time, consult an attorney in the state you are in now and come clean with them and ask for advice.
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Old 01-26-2012, 12:47 AM   #27
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Default Re: Out of State Relocation (already don

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Okay, take what I say as a "whatever or not". I have a legal degree from an accredited law school with an emphasis in family law.

I completely and utterly disagree with DC on all fronts. I don't think that it is necessarily a bad thing you moved away. BUT you need to realize you are going to spend a LOT less time with your child then you like. Dad is likely going to get baby for LONG chunks of time.

Since PA and VA are border states, and you guys are 6 hours a part, this may not be an issue.

So here are a few things that you need to think about.

1. Residency has NOTHING to do with this. Legal Jurisdiction does. Jurisdiction is the ability of a court to make an out of state citizen to come and appear in that state. PA has NO JURISDICTION over your ex. And technically, the court has no jurisdiction over your child for six months.

However, the court may not do anything. Why? Your ex has to OBJECT to jurisdiction for it to be sent back to the other state.

As I see it, you are really only screwed IF dad is aware of this, or is smart enough to get a lawyer. Then you are in for the fight of your life.

2. I think you should be very, very aware that the judge could yank your rug out from under you if dad is smart. You tipped your hand. If he went to an attorney, and that one were me, I would IMMEDIATELY FILE in my state and file for legal custody stating that it is your intent to take the child and move to another state. That you even attempted to file for custody in that state. And I would motion the court to issue you an order to immediately 1) return the child into my custody with supervised visitation until I think you are no longer a flight risk, or in lieu of that 2) move back with said child and be under a continued court order to not leave the state without the permission of the court.

3. Please do not turn the lawyers into the bar. They did nothing unethical and it will be a waste of your time and effort. They gave you okay legal advice given your circumstances. Honestly, I might have told you to take the child and try it. There is nothing to lose and you position yourself better. Also, their jobs as attorney's are to YOU, not to the baby daddy or the baby.

4. EVERYONE ELSE STOP SCARING HER! There is NO VIABLE charge of kidnapping here. Married couples can take children from out of state without consent and even against the consent of a married spouse. No one has custody of either. This is a complete and total civil situation NOT a criminal one.
Hi LSL, thanks for your advice.

Would you recommend that I withdraw my petition of custody to the court? I did it not filing for sole custody at all. My idea is for primary physical custody (joint legal custody) with the visitation outlined as above (I drive down for one full weekend a month, he can come up if he has a spare weekend, or maybe we can meet in the middle from time to time in addition to that; obviously extended week(s) for vacations and whatnot; Skype; phone calls, etc.). And since I can go get a PA DL at just about any time, how am I not a resident of the state with that? If that's the case then does VA not have jurisdiction over myself to appear down there?

I honestly don't know what he's doing or thinking about doing. Every time he tells me something that I refute with some research I've done he just goes back to insulting me, which makes me feel like he is going off of what people are telling him and not necessarily because he's spoken with a lawyer.

Though essentially it seems that everyone is in agreement if he files anything that I'll be required to either return to VA, or return DS to VA. Which means I lose him completely because I have no residence down there, no means to secure a residence, and I don't believe STBXH has the financial means to support DS full time and all on his own right now (when we were discussing my moving up here, he told me he was okay with me taking DS 'first' because it gave him time to gather money together to get back on his feet before taking DS for any extended period of time).

I hope this makes sense. I feel like I can breathe a little bit again.

---------- Post added at 11:47 PM ---------- Previous post was at 11:40 PM ----------

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PS: If I were your lawyer, I would recommend you do not withdraw your request. You can do that if and when the court says no. YOU HAVE DONE NOTHING WRONG. Period.

I might not make the decisions you have. Others may not. BUT this is not a judgment call for any of us to make.

Also: I need to point out to everyone on here - be careful. Some are reaching into the realm of the unauthorized practice of law and giving very wrong and incorrect advice. In this case, this turned into a moral argument not what she asked.

So, that being said, wait to see what ex does. He needs to answer the papers. If he doesn't it defaults and you are good to go. If he does and the judge dismisses, then big deal -- what are you out.

Again this is not RESIDENCY but Jurisdiction. I would guess after rereading your ex has talked to a lawyer. He is not threatening and wants to not "lawyer you" in another state to file the motion to dismiss. I say play hardball and make him spend those initial legal fees and sit back and bide your time. While you are biding your time, consult an attorney in the state you are in now and come clean with them and ask for advice.
Okay, sorry, just saw this.

Thank you again. I plan on calling to see if I can get a consult with an attorney first thing in the morning.

So my filing for custody even though he's not technically a resident isn't illegal? Or fraud? Thank GOD.
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Old 01-26-2012, 01:12 AM   #28
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Default Re: Out of State Relocation (already don

Okay, one more whack at explaining this. Residency is one thing. Jurisdiction is another. The court, in a custody matter, has to have the ability to assert jurisdiction over the child and the father..... The UCCJEA is a federal law that states that a child must reside in a state for six months before the court can have jurisdiction to hear the case. Your ex, only has to make a motion to dismiss on the grounds of no jurisdiction over the child. If there is no jurisdiction over the child, there is no jurisdiction over the husband.

Personally, I think you pulled the trigger way to fast. I would have sat there and sat there, every one of those 6 months out. THEN I would have filed. But it's too late now.

So now, you have to figure out what he is going to do. He has to answer. If he does not he is screwed. Don't tell him this. Keep silent. Consult your attorney, see if there is anyway around this considering you are bordering states.

Second, if you chose to move out of state, then it is incumbant upon YOU to do all the transporting. I would flat out accept that and use it for a negotiating tool.

---------- Post added at 09:12 PM ---------- Previous post was at 09:07 PM ----------

PS: Your lawyer has a right to argue that it is in the best interests of your son for the child to remain in your state considering that you won't be able to support the son and neither will dad. I am assuming that you went to live with family? This actually also helps your cause. So -- lawyer up honey. See what that attorney says and if given your hardship, something else can be done. Nothing is absolute. Nothing.

Read this: http://en.wikipedia.org/wiki/Uniform...nforcement_Act.

If I were your lawyer, I would make an argument that the court should keep jurisdiction BECAUSE of all the reasons above.... There is wiggle room. It's hard but in cases of hardship, it's doable. That's what you have to find out. How much wiggle room.
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Old 01-26-2012, 01:14 AM   #29
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Default Re: Out of State Relocation (already don

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Okay, one more whack at explaining this. Residency is one thing. Jurisdiction is another. The court, in a custody matter, has to have the ability to assert jurisdiction over the child and the father..... The UCCJEA is a federal law that states that a child must reside in a state for six months before the court can have jurisdiction to hear the case. Your ex, only has to make a motion to dismiss on the grounds of no jurisdiction over the child. If there is no jurisdiction over the child, there is no jurisdiction over the husband.

Personally, I think you pulled the trigger way to fast. I would have sat there and sat there, every one of those 6 months out. THEN I would have filed. But it's too late now.

So now, you have to figure out what he is going to do. He has to answer. If he does not he is screwed. Don't tell him this. Keep silent. Consult your attorney, see if there is anyway around this considering you are bordering states.

Second, if you chose to move out of state, then it is incumbant upon YOU to do all the transporting. I would flat out accept that and use it for a negotiating tool.
I know I jumped the gun. Honestly, I was afraid that if there was no court order in place that when I brought him down to his dad that his dad just wouldn't give him back to me (I know, kind of hypocritical ...). So if the case is dismissed, it's dismissed, no harm no foul. But STBX needs to file something in VA for there to be the chance of my losing my son?

---------- Post added at 12:14 AM ---------- Previous post was at 12:13 AM ----------

Quote:
Originally Posted by LSL View Post
PS: Your lawyer has a right to argue that it is in the best interests of your son for the child to remain in your state considering that you won't be able to support the son and neither will dad. I am assuming that you went to live with family? This actually also helps your cause. So -- lawyer up honey. See what that attorney says and if given your hardship, something else can be done. Nothing is absolute. Nothing.

Read this: http://en.wikipedia.org/wiki/Uniform...nforcement_Act.

If I were your lawyer, I would make an argument that the court should keep jurisdiction BECAUSE of all the reasons above.... There is wiggle room. It's hard but in cases of hardship, it's doable. That's what you have to find out. How much wiggle room.
Yes, I moved in with my parents after being unemployed for two years and then living in public housing and being on public assistance (welfare) for nearly a year.
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Old 01-26-2012, 01:25 AM   #30
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Default Re: Out of State Relocation (already don

LSL...while you have the law degree and I never claimed to be a lawyer...
what she is doing is flat our WRONG, Illegal, and Immoral from where I stand.

I simply suggested that she is wrong and it could seriously bite her in the ____. PLUS...her filing simply for custody when she is legally married and should be filing for a divorce is something that you didn't address.

You of all people have been with me through my battle and know what I have gone through. The situation is a bit different but not really that far off.divorce and custody Mother gets the kid into another state and the father is screwed.

I'm trying to tell the OP to do the RIGHT thing and keep the divorce and custody together...otherwise she may regret what she has done just as I'm sure my UNFIT Ex is hopefully doing now!

And I would still recommend she report those lawyers to the BAR for condoning what could be construed as a criminal act in the absconding of the child since they are legally married with NO legal separation filed with the court of residence!

---------- Post added at 12:25 AM ---------- Previous post was at 12:18 AM ----------

and what about the divorce?

She's already LIED about residency to the state of PA because they, like most states I would believe have that little statement on their forms about being a resident.

so there's a Marriage where the wife absconded with the child...even if the father/husband is a rube...DOES HE HAVE NO PARENTAL RIGHTS IN THIS?

It wound be nice...JUST ONCE to see a woman, when there's no drugs or abuse, actually DO THE RIGHT THING where the father is concerned.

just saying...DADS HAVE RIGHTS TOO!
and what the mother/wife in this is doing is TOTALLY WRONG.
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Old 01-26-2012, 01:27 AM   #31
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Default Re: Out of State Relocation (already don

And DC, there is MORAL and LEGAL. She is perfectly legal. And she can file for custody, it's complicated, but she does not have to file for divorce to file for custody. Two separate things completely... though generally they are filed consecutively. Not all state laws are alike. Many (especially in commonwealths) allow you to file separately.

Again, you don't know if the lawyers told her to file for custody and not divorce. You are jumping to some complete and total assumptions here.

I get your indignation DC because of your situation. I would not presume to give advice on raising a boy -- I don't have one. Nor about what you do for a living. But this is something I know very much about. Nothing illegal or unethical was done.

Would I make the decisions she did? No, probably not now. I would have 12 years ago.

I think we have to be CAREFUL in that we have to think "Do no harm" when talking with new posters. It is NOT our place to make a moral judgment. We do not know her circumstances. We weren't sitting in that office when the lawyers gave her advice. We did not live under the same roof as she did. We don't live in her skin. What some see as moral, others seen as perfectly fine.

Personally, she is willing to do the every other weekend thing, and long summers -- which is what dad is likely to get in conservative VA or PA. If she does the driving --- what is dad losing? Nothing.

It is not illegal to file in a different state -- it's actually a common problem. And under hardship cases, the court often will not disturb it.

Personally, in situations like this, when you can't keep your own personal feelings and judgments under control, I think it is best to walk away. I am actually instituting this on myself as well.

You had this girl frightened for NOTHING! Absolutely nothing. I don't want to pick a fight with you -- but be careful. If you have a strong feeling, coach it kindly with "In my opinion....." and this "look, I had my son stolen from me."
Not every situation is like yours DC.
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Old 01-26-2012, 01:29 AM   #32
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Default Re: Out of State Relocation (already don

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LSL...while you have the law degree and I never claimed to be a lawyer...
what she is doing is flat our WRONG, Illegal, and Immoral from where I stand.

I simply suggested that she is wrong and it could seriously bite her in the ____. PLUS...her filing simply for custody when she is legally married and should be filing for a divorce is something that you didn't address.

You of all people have been with me through my battle and know what I have gone through. The situation is a bit different but not really that far off.divorce and custody Mother gets the kid into another state and the father is screwed.

I'm trying to tell the OP to do the RIGHT thing and keep the divorce and custody together...otherwise she may regret what she has done just as I'm sure my UNFIT Ex is hopefully doing now!

And I would still recommend she report those lawyers to the BAR for condoning what could be construed as a criminal act in the absconding of the child since they are legally married with NO legal separation filed with the court of residence!
In reading over VA law, it would appear (to me anyway), that nothing need be filed to initiate "legal separation" and that "legal separation" is simply a "limited divorce", and that with the presence of a child that the married couple need to be physically separated for a year in order for the divorce to be filed and then legal. From my reading, there does not need to be something initiate the 'ticking clock', just evidence that you have been physically separated.

Also, my reading of "absconding" and "kidnapping" would have me denying my STBXH access to our child, which I'm not doing.

You are absolutely entitled to think me a horrific person. However, I'm not your (UNFIT) ex, and I don't intend on screwing over my child's father. While not ideal, I'm trying to give us both an opportunity to build a better foundation for a better future for our son.
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Old 01-26-2012, 01:30 AM   #33
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Default Re: Out of State Relocation (already don

And again, I don't think she is necessarily wrong. That is your opinion.

And I would love to see men man up and pay child support too... but hey, we can all dream.

Again, you are confusing residency with jurisdiction. You don't know if she lied on the that application. I don't either. You never asked, she never said.

You just went on incorrect procedural information. And scared her.
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Old 01-26-2012, 01:33 AM   #34
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Default Re: Out of State Relocation (already don

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She's already LIED about residency to the state of PA because they, like most states I would believe have that little statement on their forms about being a resident.
This is why residency never entered my mind: the papers didn't ask for "residency" but asked for present address. They DID, however, ask me to list the child's previous addresses as well, so this may be where the issue of residency comes up/into play if it does.
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Old 01-26-2012, 01:37 AM   #35
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Default Re: Out of State Relocation (already don

They didn't ask for residency... they never would. They might ask you if any other custody decree exists and if another court has jurisdiction.... that is how it would be labeled. JURISDICTION!!!!!!!!!!!!!!!!!!!!!!!!!!!!! (Have I hammered that one yet? LOL).
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Old 01-26-2012, 01:38 AM   #36
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Default Re: Out of State Relocation (already don

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They didn't ask for residency... they never would. They might ask you if any other custody decree exists and if another court has jurisdiction.... that is how it would be labeled. JURISDICTION!!!!!!!!!!!!!!!!!!!!!!!!!!!!! (Have I hammered that one yet? LOL).
LOL (thanks, I needed that one!). I think I've got it. Mayyyyybe. Possibly. ... wait, juris-what?

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Old 01-26-2012, 01:39 AM   #37
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Default Re: Out of State Relocation (already don

LSl, I realize my situation is a bit different but...

I was simply trying to advise a recommended a course of action that would have the least impact. you know I'm all about father's rights and believe me, with my situation, I got burned by UCCJEA. but the key thing is that the OP was thinking that she was legally separated when she was not. that she could arbitrarily uproot the child and run away from the situation. She herself admitted that she "jumped the gun" in filing.

I honestly believe that the child would be best served by letting the court of residence handle the divorce and custody/visitation issues together rather than get interstate judicial bull involved.

But then again, I'm just a single dad that has been raked over the coals...yeah, I'm a bit biased on certain things...but the OP should not hide behind bad lawyer advise that "could" possibly get her tossed in the klink! or her child and that would be to make sure dad has more than every other weekend...especially since they are still fully Legally married and not even separated!



The Original poster should "Woman Up" and do the right thing f
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Old 01-26-2012, 01:48 AM   #38
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Default Re: Out of State Relocation (already don

Well, I'd like to thank everybody for all of their input. I very much appreciate it.
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Old 01-26-2012, 02:05 AM   #39
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Default Re: Out of State Relocation (already don

Don't freak out about the "kidnapping" thing yet.

I used to live in Arizona and in that state unless you have a court order stating who has custody for x amount of times, the MOTHER is the custodial parent and can move as she wishes. For example, the father and I went to court regarding child support. We did not establish custody though I have been completely open to it. In the papers it states that I am the custodial parent based on AZ state statutes. I moved to Wa. Not kidnapping or violating anything with my situation.

As far as yours, I am not legal counsel at all BUT are you legally seperated? What does your state statutes state as far as the rights of the custodial parent or ARE you the CP based on state statutes? If 2 attorneys told you you are allowed to move then so be it but make sure you have hard copies proving that this is ok. As far as I know if you are still married and nothing has been made legal then I believe technically you have 50/50 custody for all legal purposes therefore parental kidnapping COULD come into play.
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Old 01-26-2012, 02:05 AM   #40
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Default Re: Out of State Relocation (already don

Now I have a question for you.

You say that you are able to a certain degree to work with the STBX. Have you talked to him about this and what are his feelings?

Does he accept your moving 6 hours away with his child?

It will always be in the best interest of the child if the two of you can work together for the benefit of the child.

it's obvious that the marriage didn't work and you don't sound like the vindictive type from what you have posted.

Talk to your husband to see if he is willing to let the PA courts handle the divorce and custody, as that would alleviate much stress. but please don't think that just because you're the mama that fathers cannot be loving and nurturing parents and give him a chance.

If you are willing, the child is only 2 years old and does need BOTH of you. As you have moved away, I say give him 3 weekends out of each month and you drive down there for the visits.

you catch more flies with honey than with vinegar.
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Old 01-26-2012, 02:10 AM   #41
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Default Re: Out of State Relocation (already don

SMAZ - this is different. The parents are married and the rules are different. Both have custody, both have legal rights. However, because of this, there is no kidnapping.
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Old 01-26-2012, 02:23 AM   #42
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Default Re: Out of State Relocation (already don

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Now I have a question for you.

You say that you are able to a certain degree to work with the STBX. Have you talked to him about this and what are his feelings?

Does he accept your moving 6 hours away with his child?

It will always be in the best interest of the child if the two of you can work together for the benefit of the child.

it's obvious that the marriage didn't work and you don't sound like the vindictive type from what you have posted.

Talk to your husband to see if he is willing to let the PA courts handle the divorce and custody, as that would alleviate much stress. but please don't think that just because you're the mama that fathers cannot be loving and nurturing parents and give him a chance.

If you are willing, the child is only 2 years old and does need BOTH of you. As you have moved away, I say give him 3 weekends out of each month and you drive down there for the visits.

you catch more flies with honey than with vinegar.
We had been talking about my moving up here and working out some ideas between us. I moved before we came to any exact conclusions or filed any paperwork. Since moving he is understandably upset and hasn't been up for talking about it at all. Initially he was fine with me moving 6 hours away in some capacity; now, I don't know if he thought I would never go through with it or what, but his tune has comparatively changed. I'm hoping that perhaps once things settle down a little we can have a more civil discussion and get to the matter at hand rather than slinging insults in my general direction.

Believe me, I believe fathers can be loving and nurturing. He's great with our son when he has him. My moving has nothing to do with his ability to be a good father and nearly everything to do with our overall economic hardship.
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Old 01-26-2012, 01:41 PM   #43
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Default Re: Out of State Relocation (already don

Gee whiz!

Well, I tried to warn you, nsearch.

DC, really, you seemed to relish in the idea of informing her that she was SCREWED (to quote you). And you are stateing opinion as fact, to boot!

Do you really think it's in the child's best interest to live in poverty, in govenment housing completely supported by the state when they could be living with their other parent and their extended family...and Dad would still get to see him.
She also said this is just to help her get back on her feet since Dad can't help AT ALL financially. Then she would return to his state.
THAT could be written in the agreement, if he would willingly, reasonably, negotiate.

Would you prefer the she sit there on the government dole and sue the Dad for CS....maybe gloat when he gets locked up for failure to pay?...Which wouldn't be condusive to visitation, either, btw.

It's not like the Dad can afford to have the child. So, he gets to hold her hostage away from the only non welfare help she can get but he doesn't have to do anything more to make her staying possible?

I agree that the situation is unfortunate and certainly we all, including the op, understand that the Dad is rightfully upset and that this isn't really fair to him...but what he proposes isn't fair either. At least the op seems to be considering what's best for the child. Her X only seems to care about what HE wants.

Have you seen what some state funded housing looks like? Would you want your child living like that if you could help it?

There has to be a plan for a better future in the works. At this point, it seems very reasonable to me that help from family is the best way to get moving in that direction.

If he is cooperative and they spell out visitation in the papers he really shouldn't be missing very much time at all.
If he was willing to meet her halfway, he could still possibly even have every other weekend and even longer stretches in the summer than he might get if she was living next door to him.

Now, it's true that I am making alot of assumptions in my defence of the op...I don't know for a fact that she is being as on the up and up and considerate of her child (as opposed to herself) as I am making her out to be.
But, neither do you!
You do not know that she is being as selfish and inconsiderate of the father as you are making her out to be.

I just think you were really unneccessarily harsh.

You can disagree without being disagreeable.
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Old 01-27-2012, 01:02 AM   #44
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Default Re: Out of State Relocation (already don

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Don't freak out about the "kidnapping" thing yet.

I used to live in Arizona and in that state unless you have a court order stating who has custody for x amount of times, the MOTHER is the custodial parent and can move as she wishes. For example, the father and I went to court regarding child support. We did not establish custody though I have been completely open to it. In the papers it states that I am the custodial parent based on AZ state statutes. I moved to Wa. Not kidnapping or violating anything with my situation.

As far as yours, I am not legal counsel at all BUT are you legally seperated? What does your state statutes state as far as the rights of the custodial parent or ARE you the CP based on state statutes? If 2 attorneys told you you are allowed to move then so be it but make sure you have hard copies proving that this is ok. As far as I know if you are still married and nothing has been made legal then I believe technically you have 50/50 custody for all legal purposes therefore parental kidnapping COULD come into play.
couldn't edit = ( didn't see LSL's reply...oops
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Old 01-27-2012, 05:13 PM   #45
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Default Re: Out of State Relocation (already don

How do I go back and edit? I want to take some of the more specific, identifiable information out of here, but the Edit button isn't there anymore ...
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