mtnjam75
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Reged: 07/26/07
Posts: 6
Loc: San Diego, CA.
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Not going to drag this out or make it complicated but I'm the boyfriend of a recently divorced mother with a 4 yr. old boy.
1. The mother has full physical custody of the child & Joint Legal w/ the father.
2. We both lived in the State of Va till last month. When we left, she left the child w/ the father for the summer "he has visitation on weekends but not limited to". Long story short, She moved to San Diego w/ me after I tried to Defer her from doing so. We do not live together in San Diego.
3. She wants to get her son somewhere around Labor Day weekend. Can she legally take the boy out of state to live with her & start a new life in California? "She does have full physical custody." she is not denying the father visitation. Problem is she lives in San Diego, & he lives in Northern, Va.
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googledad
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She has a problem , relocating with a child is not at her option , there are specific steps that need to be followed .
Generally she would need to inform her ex of her intent to move 30 days before the move , he would then have to contest the move . If he does they go to court . The current case law on relocation is this :
A party seeking relocation must show that a change in circumstances has occurred since the last custody award and that relocation would be in the best interests of the child. The party requesting relocation bears the burden of proof on both issues. Parish v. Spaulding, 26 Va. App. 566, 496 S.E.2d 91 (1998).
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Careful. We don't want to learn from this.
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mtnjam75
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Loc: San Diego, CA.
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Wow, talk about a dragged out case and expensive lawyer bills. So,, She should call her attorney that did the divorce papers, and submit the 30 day notice to remove the minor from Va. He then has 30 days to contest? If he does not then she's free and clear? However if the child ever returns to Va then she has to go through the process all over again?
I ask this because to be honest the guy is kind of deadbeat father who can't even afford his own residence due to the amount of $$ he spends on Booze and Strip clubs, etc,etc. I would assume that if he contested the 30 day notice, then he would have to come up with maybe 20k for a retainer fee???
Does anyone know how visitation plays into this if he does not contest and brings the child to CA. She's not denying him visitation. He's more than welcome to fly out of Regan National and come to San Diego to spend the weekends with his child, therefore she's not denying visitation right? To me it sounds like she:
1. should have never moved from Va. and or
2. had it in the divorce/custody agreement that she would be able to have Sole "physical custody" in the state of CA.
Now if she submits the 30 day notice and he contests, can she withdrawal and back down to avoid going to court? Even though she has Sole custody she cannot exercise those rights because she's now out of state, unless he doesn't contest within 30 days?
Let me ask this.. The father has agreed verbally to let her have the child from Labor Day thru Xmas which means she still has to legally notify Va 30 days prior. Since he is verbally agreeing to let the child come to CA, he would not contest, therefore once the child is here, she would be all good? Does anyone know? Complicated stuff here. :confused:
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googledad
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[quote]Wow, talk about a dragged out case and expensive lawyer bills. So,, She should call her attorney that did the divorce papers, and submit the 30 day notice to remove the minor from Va.
>>>>>>>>>>>>>>>>Yes , she must also include a detailed parenting plan that contains the exact time he will spend with the child . Generally this includes the majority of the summer and extended holidays .
He then has 30 days to contest?
>>>>>>>>>>>>>>>>>>> Yes .
If he does not then she's free and clear?
>>>>>>>>>>>> Yes , as long as his visitation rights are spelled out in her proposed parenting plan .
However if the child ever returns to Va then she has to go through the process all over again?
>>>>>>>>>>>>>>> No , once done it's done unless she moves back permanently .
I ask this because to be honest the guy is kind of deadbeat father who can't even afford his own residence due to the amount of $$ he spends on Booze and Strip clubs, etc,etc. I would assume that if he contested the 30 day notice, then he would have to come up with maybe 20k for a retainer fee???
>>>>>>>>>>>>> Not necessarily .
Does anyone know how visitation plays into this if he does not contest and brings the child to CA. She's not denying him visitation.
>>>>>>>>>>>> Like I said , her intent to move needs to include a new visitation schedule .
He's more than welcome to fly out of Regan National and come to San Diego to spend the weekends with his child, therefore she's not denying visitation right?
>>>>>>>>>>>> Incorrect , as the moving parent she would most likely be required to cover ALL the costs of transportation for the child to return to VA .
To me it sounds like she:
1. should have never moved from Va. and or
>>>>>>>>>>>>>>>It's always a good idea to stay near the other parent , removing a child from the state that has jurisdiction without the approval of a court or the other parent involves inherent risk including the loss of custody.
2. had it in the divorce/custody agreement that she would be able to have Sole "physical custody" in the state of CA.
>>>>>>>>>>>> She has sole custody in Virginia , CA has nothing to do with it .
Now if she submits the 30 day notice and he contests, can she withdrawal and back down to avoid going to court?
>>>>>>>>>>>>> Yes .
Even though she has Sole custody she cannot exercise those rights because she's now out of state, unless he doesn't contest within 30 days?
>>>>>>>>>>>>>>> Sole custody doesn't grant the custodial parent to remove the child from the jurisdiction of the court without approval .
Let me ask this.. The father has agreed verbally to let her have the child from Labor Day thru Xmas which means she still has to legally notify Va 30 days prior. Since he is verbally agreeing to let the child come to CA, he would not contest, therefore once the child is here, she would be all good? Does anyone know? Complicated stuff here. :confused:
>>>>>>>>>>>> If the proper legal steps aren't followed ( notification ) , the father could contest the move and have the child returned to Virginia . If the move is contested the burden will be on her to prove relocation is in the best interest of the child .
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Careful. We don't want to learn from this.
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mtnjam75
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Reged: 07/26/07
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Loc: San Diego, CA.
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Thanks for all that information. there were a ton of things I did not know. I didn't realize she walked away from her son and knowlingly gave up custody when she left the sate of VA. However she and I have had large discussions and she has submitted her 30 day notice to the Father & the State of Va to remove the child from the state. But there was nothing in her Divorce Agreement saying anything about discussion of visitation. There was just a requirement for a new address so that's all she put down in black in white, so hopefully that works for her.
The kid's father on the other hand isn't the sharpest tool in the shed, nor does he have the cash required for a lawyer if he so chooses to contest so it sounds like to me that he's Ass out of luck. He's been threatening her but actions speak louder than words.
One more question. She for some reason did not require for the father to pay child support.. Umm,,,,, Yeah??? Got me?? Pretty dumb if you ask me. Now she's in the state of CA and realizes that once she gets her son back here that her expenses are going to be through the roof and now she wants the child support. She's in California and he's there in VA. So does she need an attorney or can she just file for child support somewhere by filing some paperwork herself? California has a policy where they'll just take it out of the his check if he chooses not to pay, so I think once again..... He's just ass outta luck ;-)
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BeachBabeRN
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Your friend has several issues here.
First and foremost, are you involved with her in a romantic way? Or just a friend? Doesn't change the answer, I'm just curious.....
You are counting on the fact that the father doesn't have the money for an attorney -- has anyone told you he doesn't NEED one? No one NEEDS an attorney, they can choose to represent himself. And if I were him, I definitely wouldn't pay for one, he's got the deck stacked in his favor.
She did NOT give up custody when she left Virginia, the order still stands unless it's been modified in some way.
You are assuming that the child's father will **choose not to pay** child support. She has to start that in the Commonwealth of Virginia and then, assuming she gets her son back, file an interstate collection case when she's in California.
She did not require the father to pay support while in Virginia but she wants it now as her expenses are going to go through the roof in California. Is that HIS problem? Is there an actual order for child support? Your post does not make this clear. AND, my fine friend, if she's done WITHOUT the child support for any meaningful length of time, she MAY have established her own precedent of not NEEDING it. It is possible in the Commonwealth of Virginia to have an order that terminates child support between the parties -- income is income, her expenses have NOTHING to do with it aside from medical costs, daycare and basic guideline support. Whoever told you that HIS child support amount would be based on HER expenses is sadly mistaken.
As far as visitation goes, it is generally true that the moving parent has to pay for all the costs associated with visitation. Can she afford the plane tickets? The unaccompanied minor fee? That's two round trip tickets if the child goes to stay with the father, each time he goes, assuming the mother flies with him. So dear old dad doesn't HAVE to afford the expense, she'll be required to pay it.
And last but not least -- what kind of man are you that a woman who would leave her child behind for you **or at least it appears that way** means anything? My God, that is the lowest of the low....and you still respect her? You still like her? You're a better person than I am, buddy.
By moving herself to California, your girlfriend GAVE the upper hand to her ex. Now she's got to deal with the fallout. The child has been with him all summer, the court isn't going to care what he spends his money on as long as he's able to provide for the child --
Be prepared for either A) a protracted and expensive legal battle or B) your girlfriend giving up custody of her precious son for a MAN.
Neither option is very attractive.
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mtnjam75
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Loc: San Diego, CA.
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Thanks again for more info, however I think that you read my post or took things in the wrong way. The situation between her and I is quite complex and too "in depth" to explain on a message board post.
She just finished her divorce around the last week of May or the first week of June. Sometime around there. So she has not had to support the child on her own for any amount of time really. The divorce papers actually said that She has sole physical custody of him and they have joint legal custody. The father has visitation to include but not limited to weekends. She had this idea of moving to the West coast and somehow had this idea in her head that she would get school years and he would get summers and holidays. Her idea was to leave Virginia around June and let the father have his custody or time with the child first. "No the divorce papers don't say anything about summers or school years." The father however has no objection of letting her take the child to California in a few weeks. He is however giving her a hard time about letting her have him during the school years. The father cannot even afford his own residence and lives in a two bedroom apartment with 2 other family members, meaning the child shares a room with the father. There has to be a "child living condition" consideration somewhere?
As far as child support goes she has realized that she should have had it included in her original divorce agreement, especially now that she's going to be on her own and has to pay for everything herself. this whole thing is confusing actually. The way she has to go about filing for child support sounds like a big hassle and doubtful in her behalf.
As far as me being involved with her, I was under the impression that she was allowing the father to have his custody or "time" with the child first while she got established in CA. I did not look at it as if she was "abonding" her child. I was UN-Aware that she was risking her awarded custody. I had no clue. Now I do, and now I still think she has the upper card because all she has to do is jump through the hoops to bring her son to CA. Anyhow..... Got me?
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BeachBabeRN
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She didn't include child support as part of her original divorce? Yet visitation was dealt with as well as custody? I think you need to see those papers for yourself, pal, there's GOT to be a child support amount in there. I would find it quite unbelievable if the judge didn't deal with that.
There is no particular **child living condition** statute either. The child sharing a room with the father for the short term is no big deal.
Jump through hoops to bring her child to California -- on what basis? In Virginia, there is the presumption that the parent that wants to relocate has to show HOW it's in the best interest of the child. Not knowing what part of Virginia you both came from **although I suspect Tidewater** she would have to show extremely better job opportunities, more family, etc, NOT just a boyfriend that she wants to be near.
Essentially, she handed her ex the entire deck. He doesn't have to do anything but say NO to the move and I'd be pretty darned sure that the child would have to be left behind. He doesn't have to let HER have the school years and him everything else, that would need to be negotiated.
Basically she's got a long hard road ahead of her, especially if her ex speaks with anyone relatively conversant on this topic. 20K for an attorney? He doesn't NEED one to say NO.
If the situation between the two of you is too complicated for a message board then you'll have to forgive me for answering on the basis of the information provided. That's the only way I can answer though. And if she can't provide for this child and herself all on her own, perhaps the child would be better off with his dad.
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mtnjam75
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She's not from Tidewater and I'm not from the "commonwealth" of VA myself. I just got stuck living there for a little over a year for work.
I'm not sure how the divorce went down. She saw some Chincy Lawyer, paid $600 and the divorce was done. He had to sign the separation agreement, and she went to court by herself and the marriage was lifted. There is No Child Support. Believe me, I looked. And how a judge could let that fly?? I don't understand. My friend has 24% of his check after taxes taken from him every month for 1 child.
The father's living arrangement is not temporary. He lives in a small two bedroom apartment with two family members because he cannot afford to live on his own, or even split a a place with 1 other person. There is Documented Domestic Violence from him to the woman now residing in CA. He has been evicted from numerous housing and apartments because he spent his money in strip clubs and other "recreational" chemicals produced by Mother Nature or Mankind. He has passed out drunk behind the wheel and wrecked 2 vehicles into Guard Rails, Poles, etc. "Great guy eh??" The father cannot support the child, nor is he responsible enough to do so.
She filed a 30 day notice to remove the child from the Commonwealth of Virginia. He is not contesting to that, "or so he says." Once the child is here, she has her rights to full physical custody "from what I understand". She can afford to have her own residence and support the child on what she makes, however it's not enough to raise a child like you should. Therefore the father should be required to pay child support in order to fullfill those financial voids. Like,,, Daycare & Preschool. Her job opportunity here is a whole lot better for her. She's already increased her income quite a bit and there's even more room for growth where as in VA, she was stuck. Family here? no... I don't see him getting any rights to anything if he doesn't contest within the next 30 days. This is straight from lawyer who is a friend. Once the 30 days is up... He's Ass outa luck ;-) That's why the say 30 days... Now if he contests, then your right, he can say no, but he'll have to get an attorney and have his Rap Sheet pulled out and the whole 9. He just threatens her with going to court and when she called his bluff the other day, he backed down real quick. Money.. Makes the world go round, that's for sure. Gotta luv those High Dollar Attorney's!
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mtnjam75
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Reged: 07/26/07
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Loc: San Diego, CA.
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So I started this post awhile back while my girlfriend was living here in the State of CA without her child. The child was living in the Commonwealth of VA with is father for the summer.
Do to the advice of people on this site and others she presented the father and the Commonwealth of VA with a 30 day notice to remove the child from Va and bring him to CA. that gave the father 30 days to contest this action with the state correct????
Well he did not contest. She went and picked her son up this past weekend. Now they are both in the state of CA. My question is this:::: Are the divorce papers that were drawn up in the Commonwealth of VA legit here in the state of CA?? they read in not so many words that they have "joint" legal custody and she has full physical custody and he has visitation every weekend but not "limited to".
I ask this because the father is not talking about moving to California. If he moves to CA, are the divorce papers legit here? Since he didn't contest what does this mean now that the child is in her custody now? Anyone have a clue? If not then I'll move this over to the California message board. Thanx,,,,,,
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