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Unfair Judge

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What is the name of your state? Massachusetts. My husband has had his daughter since her mother took off in 1997. He went to court to obtain a temporary order of sole physical custody, which the mother agreed to. This temporary order stated the mother would see the daughter one week out of the year. Now move forward some 8 years later, my husband and I decided to move to NC. The mother who lives in FL flew up to MA to help the her mother get emergency guardianship saying that my husband threatened his daughter (Daughter does not want to move, she is now 15). Mother and Grandmother never had my husband served, she has stated several reasons, i.e. she did not know where he was, she didn't know she had to serve him.

We have been going to court to get this order vacated because it was done I will say illegally, and we have not had a lot of luck with this at all. We drove up for a court date on the 31st, and the judge didn't even look at anything he just set a trial for Aprill 11th. So we flew up to MA on Saturday and went to court on Monday.

This judge is such a jerk, he did vacate the order but, he then turned around and gave temporary custody to the childs mother, and her mother. My husband now has NOTHING! He has had sole physical custody of his daughter since she was 8 years old, and now because she doesn't want to move, and because her mother wants to be a hero, my husband loses custody of his daughter? He is a great father, and we don't know what to do. Can we petition for a new judge? His lawyer says we can't that it's done by case number. I really do like his lawyer a lot but I find it hard to believe we can't petition for a new judge. Please help me.
 


snostar

Senior Member
Your husband can petition for anything he wants, but unless there was a serious conflict of interest the court will not likely assign new judge. People can't just hop around to different judges because they do not agree with a decision. Your husband should definitely consult another attorney if he is unhappy with the current service he is being provided, remember this is temporary, not a final decision.
 
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The judge will not listen to anything my husbands lawyer has to say, we were supposed to go for a trial on the 11th, and he didn't even give us the opportunity to present any evidence. The case was reassigned back in February because of issues with Judges in Massachusetts, so all cases were reassigned.

The thing with my husbands case is that the grandmother has already gone to court once and the judge before this said that she had no case and all they wanted to do was eyeball my husband and the order would be vacated. Then after this whole thing In massachusetts with the judges, we were given this jerk.

He knew on the 31st when we originally went to court that this guardianship was obtained "illegally" as I call it, and didn't do anything but send it to trial. He was worried about my stepdaughter running away.
 

snostar

Senior Member
First of all, you have provided no evidence whatsoever that the assignment of guardianship was done illegally. Simply because that is your opinion does not necessarily make it so, although possible, it is unlikely. Also, you stated, "he then turned around and gave temporary custody to the child’s mother, and her mother." Temporary is just that, temporarily pending until a future hearing or conditions are met. Eventually a final order will be in place. You really need to stay on the sidelines and let your husband handle this.
 

stealth2

Under the Radar Member
Doesn't MA require the consent of the court prior to moving a child out of the jurisdiction? Did Dad take it to court to get that permission? THAT may be where the problem lies.
 

haiku

Senior Member
out of all the states, Ma. has the STRICTEST rule about removing children from the commonwealth.

if you did not ask mom AND petition the court to move the girl to North Carolina, BEFORE you moved,you are in contempt.

Couple that with the age of the girl and her desire to stay in the commonwealth, I think you can pretty much arrive at the judges reasons for changing the custody. You may SOL.....
 
SnoStar - I have been sitting on the sidelines as far as this is concerned. The problem is that my husband was never served notifying him of this temporary guardianship because the grandmother said she didn't know where he was. Then in court she said she didn't know she had to. That is my problem with the guardianship. As far as the temporary custody order, how can a judge vacate guardianship and then give temporary custody to the mother and grandmother, when my husband was the one with sole physical custody for 7 years.

stealth2 - MA does require consent of the court if the parents were married. It does not say anything about non-married couples. They were never married, they were teen parents.
 
haiku said:
out of all the states, Ma. has the STRICTEST rule about removing children from the commonwealth.

if you did not ask mom AND petition the court to move the girl to North Carolina, BEFORE you moved,you are in contempt.

Couple that with the age of the girl and her desire to stay in the commonwealth, I think you can pretty much arrive at the judges reasons for changing the custody. You may SOL.....[/QUOT


Mom was aware, and we contacted his lawyer and she had said that we did not have to. I guess one of my biggest questions is, how can the judge vacate the order and the change the custody when that wasn't even the issue at hand.
 

LdiJ

Senior Member
stealth2 said:
Doesn't MA require the consent of the court prior to moving a child out of the jurisdiction? Did Dad take it to court to get that permission? THAT may be where the problem lies.
Mom didn't live in MA and Dad had sole custody...that could be part of the problem buts its not all that likely. What I think is the main problem is the child's age and the child's wishes. The judge wiggled out of the third party aspect of things by vacating the guardianship and including mom in the temporary custody order. Its obvious that the judge is giving the child's wishes alot of weight in this case.

I hope that dad is pushing this to trial. Its going to be difficult for the judge to make a final order that is going to allow the child to stay in MA unless mom decides to live there....or at least an order that isn't highly appealable.

There is something though for this dad to consider. If the child is THAT adamantly opposed to leaving MA...and dad wins...dad is going to have an impossible teenager on his hands...and a teenager who may very well leave his house at 18 and never look back. If he agrees to allow her to remain in MA on the condition that she spends the entire summer in NC....and she gets there, makes friends and LIKES it in NC...she may change her mind.

Its a strategy to consider....he has time to broker a temporary agreement before school gets out if he hustles.
 
LdiJ said:
Mom didn't live in MA and Dad had sole custody...that could be part of the problem buts its not all that likely. What I think is the main problem is the child's age and the child's wishes. The judge wiggled out of the third party aspect of things by vacating the guardianship and including mom in the temporary custody order. Its obvious that the judge is giving the child's wishes alot of weight in this case.

I hope that dad is pushing this to trial. Its going to be difficult for the judge to make a final order that is going to allow the child to stay in MA unless mom decides to live there....or at least an order that isn't highly appealable.

There is something though for this dad to consider. If the child is THAT adamantly opposed to leaving MA...and dad wins...dad is going to have an impossible teenager on his hands...and a teenager who may very well leave his house at 18 and never look back. If he agrees to allow her to remain in MA on the condition that she spends the entire summer in NC....and she gets there, makes friends and LIKES it in NC...she may change her mind.

Its a strategy to consider....he has time to broker a temporary agreement before school gets out if he hustles.

Thank you LDIJ, we have actually talked before, you are correct as to the custody, Dad had her because the mother was out of state. Before we decided we were going to move we had discussed this with my stepdaughter, she was all for it. She even told the court she was all for it in the beginning. It wasn't until we put a down payment on the house and signed papers that she changed her mind.

We do understand about the Impossible teenager, this is something we have thought of. We wanted her to finish the school year in MA but have her move to NC in the summer. Mother has showed absolutely no interest in this child at all and all of a sudden she gets custody. I know it's temporary but my husband now has nothing. The child is adament about not going because her mother is filling her head with all of these things, and she's mad at my husband now. Like I said, she was OK with going but then her mother came to visit in July and then in August when the mother left, that is when the daughter said she didn't want to go. Mother has told the daughter that the father never wanted her (which strikes me funny, when would he get custody of her after the mother took off when the child was 8? Why would he take the daughter to live with him when the she was 4 because he had a stable home) and the mother also told the daughter that her father kept them apart. This is a very messy situation and I don't want my husband to lose his daughter.
 
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stealth2

Under the Radar Member
Can'tSeemToWin said:
stealth2 - MA does require consent of the court if the parents were married. It does not say anything about non-married couples. They were never married, they were teen parents.
I wonder if you could point me to somethign in writing that states that? All I'm finding makes no distinction between amrried/unmarried parents - only CP/NCP.

LDi - while that may be, if MA requires a court's consent - it requires a court's consent regardless. If Mom didn't live in state, it likely would have been a slam-dunk. Unlike now.
 
stealth2 said:
I wonder if you could point me to somethign in writing that states that? All I'm finding makes no distinction between amrried/unmarried parents - only CP/NCP.

LDi - while that may be, if MA requires a court's consent - it requires a court's consent regardless. If Mom didn't live in state, it likely would have been a slam-dunk. Unlike now.
I honeslty can't tell you where it is, my husbands lawyer has told us, and also some other judges have mentioned it while we have been going through this case. The last judge is the one that said we didn't have to but it might be a good idea because some judges do not like to treat married and unmarried couples different, and my husbands lawyer has started this process.

About the mother, she still lives in FL.
 

snostar

Senior Member
Can'tSeemToWin said:
I guess one of my biggest questions is, how can the judge vacate the order and the change the custody when that wasn't even the issue at hand.
Judges are obligated to address the issues within the petition, and CAN address additional verbal issues that are brought up in court. The judge must have had a reason to vacate the order, do you know what it was?
 
snostar said:
Judges are obligated to address the issues within the petition, and CAN address additional verbal issues that are brought up in court. The judge must have had a reason to vacate the order, do you know what it was?
He didn't say, I can only assume it's because my stepdaughter says she doesn't want to go now, she said she'll run away. I just don't understand this whole thing, one judge said this was pretty much an open and shut case, and then we get this other judge and he says totally different. Don't they look at what other judges have said?
 

haiku

Senior Member
http://www.mass.gov/legis/laws/mgl/208-30.htm
Chapter 208: Section 30 Minor children; removal from commonwealth; prohibition

Section 30. A minor child of divorced parents who is a native of or has resided five years within this commonwealth and over whose custody and maintenance a probate court has jurisdiction shall not, if of suitable age to signify his consent, be removed out of this commonwealth without such consent, or, if under that age, without the consent of both parents, unless the court upon cause shown otherwise orders. The court, upon application of any person in behalf of such child, may require security and issue writs and processes to effect the purposes of this and the two preceding sections
I think the important thing to note here is the wording "over whose custody and maintenance a probate court has jurisdiction of" not whether or not the parents were married at time of birth.
 
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