Procedural question

[dadcobf]

What is the name of your state (only U.S. law)? AZ

This summer Mom decided she didn't want to return my son at the end of summer vacation. He has lived with me for four years, but since we didn't have a written change to the order she felt that should could just keep him (I relocated with my son 4 years ago).

My attorney filed a Petition to Appear so that I could ask the court to order mom to return my son since even though we didn't have the written notices, it is clear she was aware of the relocation and never took any action to keep son in AZ during those four years, therefore he should return to my residence while we go to mediation to update the parenting plan.

A couple days after we filed my petition, she filed a petition to modify the order to sole custody.

My question is, do the courts generally schedule hearings on a first come first served basis, or do some hearings get schedule quicker than others based on whether they are Petition to Appear or Petition to Modify? My filing requested an expedited hearing because I was hoping to have my son back before school started so he wouldn't miss any days, but as of yet I'm still waiting for a hearing date.

Thanks

 

[wileybunch]

Yes, some cases are heard before others, but your case is doubtful to be one of them. While you would like your child home sooner, this doesn't constitute a true "emergency" when you consider all the emergencies that would come before a family court. What you will likely end up with is make up time which should have been in your motion. What was the reason in Mom's response for petitioning for sole physical(?) custody?

 

[dadcobf]

Reason

Her reason for the modification was because I didn't provide written notice of relocation 4 yrs ago. She verbally agreed to the move, and in fact took him to the airport every time he has gone back and forth for vacation. I send him to mom's pretty much anytime his isn't in school so he has as much time with her as possible.

What she told me on verbally, before filing the motion was that the reason she wanted him was because 15 weeks out of the year isn't enough to 'impart her values' on him. My opinion was that wasn't a good enough reason for the court to change custody, my understanding being that the court likes the status quo unless something major has changed.

 

[LdiJ]

Her reason for the modification was because I didn't provide written notice of relocation 4 yrs ago. She verbally agreed to the move, and in fact took him to the airport every time he has gone back and forth for vacation. I send him to mom's pretty much anytime his isn't in school so he has as much time with her as possible.

What she told me on verbally, before filing the motion was that the reason she wanted him was because 15 weeks out of the year isn't enough to 'impart her values' on him. My opinion was that wasn't a good enough reason for the court to change custody, my understanding being that the court likes the status quo unless something major has changed.

Except that legally, she has custody, you don't. You have a good shot at custody based on "status quo", but its not absolutely guaranteed. How old is your child?

 

[majomom1]

Yes, some cases are heard before others, but your case is doubtful to be one of them. While you would like your child home sooner, this doesn't constitute a true "emergency" when you consider all the emergencies that would come before a family court. What you will likely end up with is make up time which should have been in your motion. What was the reason in Mom's response for petitioning for sole physical(?) custody?

If mom's case gets scheduled first - Dad should be able to file a motion to call up ALL matters and include them at that hearing.

At the very least, he could request a continuance on the grounds that there is another pending Motion and they really should be heard together.

 

[2Mistakes]

And this, folks, is a perfect example of why anytime something major changes, the court order needs to change, too.

Verbal agreements mean squat.

 

[dadcobf]

Absolutely agree with you all on verbal agreements. If I had been here reading these forums a few years back things would be much easier now.

In any case, I agree that nothing is guaranteed. Attorney figured we could at least ask the judge to return my son while we go to mediation. If judge says no, the next step would be to file for a modification based on the fact that he has been living with me for such a long time (status quo argument, plus some other things like instability at her house, health issues, etc).

I should also mention that the original order was for joint custody, with me as the primary physical custodian. But, as LdiJ says, as the order is written, since there was no written notice, she now has custody. So I'm not sure why she would even file a modification, she is doing all her stuff pro se. I would think I would have to file the modification request.

 

[dadcobf]

Oh, and my son is 10 yrs old.

 

[2Mistakes]

Absolutely agree with you all on verbal agreements. If I had been here reading these forums a few years back things would be much easier now.

In any case, I agree that nothing is guaranteed. Attorney figured we could at least ask the judge to return my son while we go to mediation. If judge says no, the next step would be to file for a modification based on the fact that he has been living with me for such a long time (status quo argument, plus some other things like instability at her house, health issues, etc).

I should also mention that the original order was for joint custody, with me as the primary physical custodian. But, as LdiJ says, as the order is written, since there was no written notice, she now has custody. So I'm not sure why she would even file a modification, she is doing all her stuff pro se. I would think I would have to file the modification request.

OK, wait. Are you saying that the most recent court order gives you primary physical custody?

 

[majomom1]

OK, wait. Are you saying that the most recent court order gives you primary physical custody?

Changes the whole game doesn't it 2?

OP... If the most current order gives you primary, Mom could be in trouble. Possesion is not the same thing as custody. You have primary custody and status quo in your favor.

Mom has to return the child. This is custodial interference. Most likely Mom will have to return the child and SHE will be the one that has to wait for the courts on the modification. AND she will have to prove a change in circmstance for the modification.

 

[majomom1]

Absolutely agree with you all on verbal agreements. If I had been here reading these forums a few years back things would be much easier now.

In any case, I agree that nothing is guaranteed. Attorney figured we could at least ask the judge to return my son while we go to mediation. If judge says no, the next step would be to file for a modification based on the fact that he has been living with me for such a long time (status quo argument, plus some other things like instability at her house, health issues, etc).

I should also mention that the original order was for joint custody, with me as the primary physical custodian. But, as LdiJ says, as the order is written, since there was no written notice, she now has custody. So I'm not sure why she would even file a modification, she is doing all her stuff pro se. I would think I would have to file the modification request.

If I am understanding correctly - per the most current COURT order, you have primary. Why do you think she now has custody? Because she has him? That is not how it works.

Please clarify. It sounds like Mom has filed a modification to GET primary custody, and your attorney should be insisting that the child be returned to you, not hoping. I am not 100% clear on what you are saying here.

 

[dadcobf]

Sorry if I wasn't clear.

Initial (and only so far) CO gives me primary physical custody, with joint legal.

I relocated with my son 4 yrs ago (before the divorce was finalized), and then a week or two after the divorce was final, Mom sent son to my house so he could start school with me, and he was with me up until I sent him to mom's in June of this year for summer break.

CO says "Neither party shall remove children from the State of Arizona without prior written approval of the other party" and "Neither party shall permanently relocate the child outside the State of Arizona without the prior written approval of the other party, or order from a court of competent jurisdiction. If one party desires to relocate, the the party remaining inside Arizona shall take primary physical custody of the child. The parents agree to make any necessary ajustments in good faith, using mediation services if necessary before seeking a modification in court."

So - by the written word - she should have taken physical custody when I relocated four years ago. She didn't, and my question to the court is can you wait four years to decide you want to take physical custody. (I would argue no, ARS 408(?) allows 30 days to contest a relocation, but I'm not sure if that would apply here).

Plus I'm hoping the judge doesn't like the fact that she just unilaterally decided to not return him from summer vacation given that I sent him to her house in good faith that he would be coming back.

 

[majomom1]

Sorry if I wasn't clear.

Initial (and only so far) CO gives me primary physical custody, with joint legal.

I relocated with my son 4 yrs ago (before the divorce was finalized), and then a week or two after the divorce was final, Mom sent son to my house so he could start school with me, and he was with me up until I sent him to mom's in June of this year for summer break.

CO says "Neither party shall remove children from the State of Arizona without prior written approval of the other party" and "Neither party shall permanently relocate the child outside the State of Arizona without the prior written approval of the other party, or order from a court of competent jurisdiction. If one party desires to relocate, the the party remaining inside Arizona shall take primary physical custody of the child. The parents agree to make any necessary ajustments in good faith, using mediation services if necessary before seeking a modification in court."

So - by the written word - she should have taken physical custody when I relocated four years ago. She didn't, and my question to the court is can you wait four years to decide you want to take physical custody. (I would argue no, ARS 408(?) allows 30 days to contest a relocation, but I'm not sure if that would apply here).

Plus I'm hoping the judge doesn't like the fact that she just unilaterally decided to not return him from summer vacation given that I sent him to her house in good faith that he would be coming back.

Ok... that is more clear. And yes, your attorney should be making use of the fact that Mom has not taken any action for 4 years. You have primary custody. You have established status quo, out of state. Is your attorney hesitant,or doubtful on this. Attorneys generally know how the Judge are in their courts... but I would also think that they would adamantly show that Mom didn't object until 4 years later and really press that fact.

At this point Mom should have to return the child to you and wait for the mediation/modification process. Ask your attorney about what I suggested above: filing a motion to call up ALL matters if they should schedule Mom's hearing first. Now if they schedule YOURS first, you would not necessarily want to do this - let Mom do that.

Where did you relocate to?

 

[LdiJ]

Ok... that is more clear. And yes, your attorney should be making use of the fact that Mom has not taken any action for 4 years. You have primary custody. You have established status quo, out of state. Is your attorney hesitant,or doubtful on this. Attorneys generally know how the Judge are in their courts... but I would also think that they would adamantly show that Mom didn't object until 4 years later and really press that fact.

At this point Mom should have to return the child to you and wait for the mediation/modification process. Ask your attorney about what I suggested above: filing a motion to call up ALL matters if they should schedule Mom's hearing first. Now if they schedule YOURS first, you would not necessarily want to do this - let Mom do that.

Where did you relocate to?

I agree as well, that changes the whole nature of the situation. You had primary physical custody, mom did not exercise her right to take primary physical custody based on your move, it should be too late for mom to do so now.

Your attorney should be lighting some fires to get the judge to order that the child be returned to you pending the outcome of the case.

This was critical information that should have been included in your first post.

Are you leaving out any other critical information? Is your son progressing normally in school, not in any trouble etc.?

 

[dadcobf]

Sorry for leaving the information out, I was trying to keep to the main point of my question which was which petition will be heard first, hers or mine.

I relocated to California first, and then this past January relocated to Colorado which is where I am now. I have an attorney in both CO and AZ, as we were considering trying to change the jurisdiction, but since she has him in her possession now, both attorneys felt that it would be faster to work through the court where the divorce was filed.

Only other significant detail is that we also have a daughter who we decided it would best to stay with mom for a year or two. I'd like to eventually get her back as well, but I wanted to wait until things are settled with my son. If I do have to file a modification though, I might see if it makes sense to ask for both of the kids back or not.

Otherwise, son is doing well in school, have four years of good grades that I can show. He has been healthy even though mom states she is better at taking care of his asthma - he hasn't shown any symptoms for two years, and for that matter I'm more than capable of taking care of him. She enrolled him in school at her house and he said on the phone he doesn't like it there. Although I realize that doesn't matter much since kids don't get to choose where they should live.

Thanks for all the comments thus far!