My friend's painful situation

[green11]

What is the name of your state (only U.S. law)? TX (Husband) & NY (Wife)

A long term friend of mine has been going through the situation below, and he's very devastated and doesn't know what to do. He's too much of a wreck to even read and post on the forums so I am asking for him:

He's been married 15 years with 3 kids, all close to 10 yrs old. They lived for 8 years in TX, transferred to the UK for 2 years, and then about 6 months ago she decided she didn't want to be with him, so she picked up the 3 kids and left him in the UK and moved back to her home state, NY. He moved back to TX with work about 3 months ago to be closer to the kids. She is trying to get a job in NY, but can't. TX is as close as he can be to the family with work given the bad job market.

I think she has to be a resident for 1 year in NY before she can file for divorce, and that's probably what she's waiting to do. She has asked him to send monthly checks for child support in the $2K range, and he's doing it to keep the peace.

He's hoping somehow she will change her mind and reconcile, but he's worried about what he's giving up legally by not fighting her taking his kids away and being obligating to pay support before any agreement. She probably won't reconcile because it looks likely that she went back to NY to be in a relationship with an old friend.

What are your thoughts? Can she legally take the kids away like that? What are his options?

TIA

 

[LdiJ]

What is the name of your state (only U.S. law)? TX (Husband) & NY (Wife)

A long term friend of mine has been going through the situation below, and he's very devastated and doesn't know what to do. He's too much of a wreck to even read and post on the forums so I am asking for him:

He's been married 15 years with 3 kids, all close to 10 yrs old. They lived for 8 years in TX, transferred to the UK for 2 years, and then about 6 months ago she decided she didn't want to be with him, so she picked up the 3 kids and left him in the UK and moved back to her home state, NY. He moved back to TX with work about 3 months ago to be closer to the kids. She is trying to get a job in NY, but can't. TX is as close as he can be to the family with work given the bad job market.

I think she has to be a resident for 1 year in NY before she can file for divorce, and that's probably what she's waiting to do. She has asked him to send monthly checks for child support in the $2K range, and he's doing it to keep the peace.

He's hoping somehow she will change her mind and reconcile, but he's worried about what he's giving up legally by not fighting her taking his kids away and being obligating to pay support before any agreement. She probably won't reconcile because it looks likely that she went back to NY to be in a relationship with an old friend.

What are your thoughts? Can she legally take the kids away like that? What are his options?

TIA

Yes, she could legally do that. He might have been able to fight her taking the kids from England like that, but he gave up all ability to fight her living in NY with the kids when he moved to TX.

What he needs to do is file, in NY, to establish custody/parenting time and child support. He does not have to file for divorce to do that. NY will have jurisdiction of matters regarding the children, because NY is the state of the children's legal residence.

 

[green11]

Yes, she could legally do that. He might have been able to fight her taking the kids from England like that, but he gave up all ability to fight her living in NY with the kids when he moved to TX.

What he needs to do is file, in NY, to establish custody/parenting time and child support. He does not have to file for divorce to do that. NY will have jurisdiction of matters regarding the children, because NY is the state of the children's legal residence.

Thanks for the super fast reply, LdiJ! That was very helpful.

I didn't realize he couldn't file in TX even though that's his place of residence?

If he needs to stay in TX to support himself and his kids with his job, does he have any way to make the kids place of residence in TX so he can see them more often/more easily?

 

[LdiJ]

Thanks for the super fast reply, LdiJ! That was very helpful.

I didn't realize he couldn't file in TX even though that's his place of residence?

He could file in TX for divorce, but TX would not have jurisdiction of the children because the children live in NY.

If he needs to stay in TX to support himself and his kids with his job, does he have any way to make the kids place of residence in TX so he can see them more often/more easily?

He could file for primary custody and hope that he would win, but that's not very likely since status quo is that they live in NY with mom. Otherwise, no, he has no way to make TX the children's residence. He cannot force mom to move to TX.

 

[green11]

He could file in TX for divorce, but TX would not have jurisdiction of the children because the children live in NY.



He could file for primary custody and hope that he would win, but that's not very likely since status quo is that they live in NY with mom. Otherwise, no, he has no way to make TX the children's residence. He cannot force mom to move to TX.

Thanks again, LdiJ, you rock!

Your answers bring up one last question: Some of his friends are saying that on their next visit to Texas, he should just keep the kids here to live with him and enroll them in school here.

They are speculating that since there is no custody agreement he has as much right to the kids as she does.

Is that legally correct?

Since she can't file for probably 6 more months in NY since she doesn't have the 12 month residence requirement, would he be able to establish that the kids live with him in Texas so that TX courts would have jurisdiction and the courts would view him as primary care giver for the requesting primary custody?

Thanks!

 

[LdiJ]

Thanks again, LdiJ, you rock!

Your answers bring up one last question: Some of his friends are saying that on their next visit to Texas, he should just keep the kids here to live with him and enroll them in school here.

They are speculating that since there is no custody agreement he has as much right to the kids as she does.

Is that legally correct?

Since she can't file for probably 6 more months in NY since she doesn't have the 12 month residence requirement, would he be able to establish that the kids live with him in Texas so that TX courts would have jurisdiction and the courts would view him as primary care giver for the requesting primary custody?

Thanks!

If you friend listened to the friends who are giving him that advice, then I would say that your friend was an idiot. If you are espousing that adivce also, then I would say that you are an idiot as well...I am sorry to be so blunt, but the whole premise is just stupid and not in the best interest of the children....and the end result would likely hurt your friend enormously.

I am done here...tell your friend to consult attorneys in NY and TX.

 

[green11]

If you friend listened to the friends who are giving him that advice, then I would say that your friend was an idiot. If you are espousing that adivce also, then I would say that you are an idiot as well...I am sorry to be so blunt, but the whole premise is just stupid and not in the best interest of the children....and the end result would likely hurt your friend enormously.

I am done here...tell your friend to consult attorneys in NY and TX.

Who are you to decide what is in the best interest of the children. You know nothing about the situation, and nobody asked you for your ethical advice.

Stick just to answering the legal questions, and quick being the a-hole that you you are.

(Don't reply to this email. Remember you "are done here." LOL!)

 

[MB123]

If you friend listened to the friends who are giving him that advice, then I would say that your friend was an idiot. If you are espousing that adivce also, then I would say that you are an idiot as well...I am sorry to be so blunt, but the whole premise is just stupid and not in the best interest of the children....and the end result would likely hurt your friend enormously.

I am done here...tell your friend to consult attorneys in NY and TX.

wow, ldij, you were completely out of line in your reply. nobody wants to hear your ridiculous opinions. just stick to the facts, please.

 

[Proserpina]

wow, ldij, you were completely out of line in your reply. nobody wants to hear your ridiculous opinions. just stick to the facts, please.

You might do well to follow your own advice.

Though it wasn't covered in lace and roses, LdiJ's response was pretty much on the ball. She wasn't wrong.

 

[WittyUserName]

Who are you to decide what is in the best interest of the children. You know nothing about the situation, and nobody asked you for your ethical advice.

Stick just to answering the legal questions, and quick being the a-hole that you you are.

(Don't reply to this email. Remember you "are done here." LOL!)

Insulting the volunteers who give their time here isn't going to get you anywhere.

Dad has now consented to the kids being in NY for six months. NY has jurisdiction. What Dad is contemplating could land him in SERIOUS hot water with a judge. Behavior like that is what's referred to as "judge-slappable" around here. Where did we get this 1 year idea? (For divorce, a year - but you're talking about custody.) Six months generally equals residency according to the UCCJEA.

Dad is going to have to live and try to make some kind of reasonable peace with Mom for the next 8 years at least. An action like that will likely come back to bite him, legally speaking, and he could seriously harm himself long-term in a court of law.

 

[Ronin]

Given they are married and nothing has been filed in court, then the father does have just as much legal right to the children as the mother.

That said, there are potential issues with what you are suggesting, including the childrens best interests, and there is a good possibility such a tactic could backfire.

The fathers best bet is to talk to a Texas family law attorney as soon as possible, to better assess what his options are at this point, and advise him against doing anything rash.

If the children were residents of Texas prior to moving overseas, the father has moved back to Texas, the mother and children are in NY but have not established residency in NY (it appears there is a one year requirement in NY), there is a possibility that Texas would have jurisdiction over the children if the father files suit in Texas.

 

[mistoffolees]

Who are you to decide what is in the best interest of the children. You know nothing about the situation, and nobody asked you for your ethical advice.

Well, there are a few possible scenarios - and in every case, Ldij's statement was reasonably accurate. Maybe a little overstated, but not much.

OK, let's go through a couple of them:

1. Mother is completely fit parent and father let the kids live with mother - and then moved to another state. In that case, finding justification for making the kids move to TX would be tough, if not impossible. The kids are residents of NY (or very close to it) via national stadards.

2. Mother is unfit and father let kids to live with her for 6 months while he moved to an entirely different state and didn't do anything about her 'unfitness'. That casts serious doubts onto his claiming that she's unfit at this point.

3. Mother was OK for a while but is now unfit for some reason. If that's the case, he needs to work through the NY courts and file for custody there because NY is going to have jurisdiction. Simply grabbing the kids without filing a case with Child Welfare doesn't address the issue of mother's unfitness. If he really believed she had become unfit, he should be working within the system.

Don't get me wrong. He has the LEGAL right to try to keep the kids with him. Until the court has ordered that the mother has custody, they are as much his kids as hers. But considering that they're established in NY and he has not made any allegations of unfitness or danger to the children, it's going to be perceived as an attempt to deprive the kids of their home and mother - and would not be well received by courts anywhere. So I'm not saying that he's going to be charged with kidnapping or anything, but the mother would likely head right into court for an emergency ex parte hearing to determine custody and would probably obtain an order for the kids to be returned - and he's going to have a black eye with that judge on every other matter that comes up.

 

[garrula lingua]

Why help someone as rude as Green was to LDIJ ??
When she liked what she heard, Green was polite ... and when she didn't like the comments, she lashed out at Ldij.

I know Tx law, very well. I also know NY law, as it's my home state.

It would be a cold day in Hades when I'd offer any advice to Green, except:

consider the full meaning of the phrase 'Best Interest of the Children' and, ponder 'parental kidnapping'.

Ldij isn't 'done here'. I hope you are.

You are too ignorant to know the difference between ethical and legal advice, Green.

 

[Ronin]

I do not believe there are any UCCJEA standards on residency requirements (ie; 6 months) intended to override any state laws. NY has strict residency requirements that have to be met before filing suit for divorce/custody. At this point in time it does not appear the mother has yet met these requirements.

There is an interesting article on UCCJEA and N.Y. State regarding jurisdiction, some parts of this article are applicable to the case at hand.

www.international-divorce.com/uccjea_child_custody.htm[/B]]UCCJEA

 

[LdiJ]

On the issue of Jurisdiction

I have to point out some jurisdictional issues:

The family lived in TX and moved to England. They remained there two years. Therefore under the Hague Convention England became the children's "state of habitual residence" and England had jurisdiction over the children.

Mom and the children then moved to NY. Dad moved to TX.

It would be virtually impossible for dad to claim, at this point, that TX had any jurisdiction over the children. They have not lived there for 2 1/2 years.

If dad had remained in England he could have argued that England still had jurisdiction over the children and could have won that argument.

I don't think that mom would have any trouble convincing an NY judge to take jurisdiction over the children, due to the specific facts of this case.

Mom has status quo as well. If dad were foolish enough to take the very hostile steps of keeping the children and refusing to return them to mom, I am certain that mom could and would get them back and dad would be dealing with a hostile and complicated battle for the next 8 or so years.