Dad needing help

[ILDad71]

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

I've been in a Temporary custody dispute since July 2009. I'm representing myself knowing home state is IL and my son lives in CA. I've presented critical reports to the court upon request. These reports include CPS report, Police report and Docket outlining my ex's convictions. My ex was charge with DUI, BAC .13 and going 90 MPH with my son in the car and CPS took my 9yr. old son in custody to begin the investigation from my ex's actions that night. Essentially the lies she told and just nature of the charges.

I've had to 2 status hearings to submit information upon the court request and from my last status hearing my Ex's lawyer submitted a motion to change venue. The reports submitted to the court are very damaging and addresses many lies brought to this court over the years and to let you know I've been in court over the last 6 years upholding my visitation. I just finish a visitation problem for Christmas 08 and was finalized in April 09. The court enforces conditions to stop her actions with visitation interference and my Son's alleged unwillingness to want to visit me or have a meaningful relationship with me. This latest incident happens 45 days after the courts placed these conditions.

This is where I need help.

How can I stop this motion to change venue knowing there is so much history to this case, outside of my ex's latest actions in June 09. Does anyone know of case law that might help me support my response to motion? Also what positions should I make in my response to make this court understand this would not be in the best interest of the child and the father trying to preserve a meaningful relationship with his son. I just find it frustrating that the court would honor this motion and just make it much easier for my ex wife to continue her on-going interference with my son and me. Knowing the court is expecting my ex to be a mature and positive role model from the April 09 court appearance. The reports I submitted to the court upon their request CLEARLY show otherwise.

 

[LdiJ]

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

I've been in a Temporary custody dispute since July 2009. I'm representing myself knowing home state is IL and my son lives in CA. I've presented critical reports to the court upon request. These reports include CPS report, Police report and Docket outlining my ex's convictions. My ex was charge with DUI, BAC .13 and going 90 MPH with my son in the car and CPS took my 9yr. old son in custody to begin the investigation from my ex's actions that night. Essentially the lies she told and just nature of the charges.

I've had to 2 status hearings to submit information upon the court request and from my last status hearing my Ex's lawyer submitted a motion to change venue. The reports submitted to the court are very damaging and addresses many lies brought to this court over the years and to let you know I've been in court over the last 6 years upholding my visitation. I just finish a visitation problem for Christmas 08 and was finalized in April 09. The court enforces conditions to stop her actions with visitation interference and my Son's alleged unwillingness to want to visit me or have a meaningful relationship with me. This latest incident happens 45 days after the courts placed these conditions.

This is where I need help.

How can I stop this motion to change venue knowing there is so much history to this case, outside of my ex's latest actions in June 09. Does anyone know of case law that might help me support my response to motion? Also what positions should I make in my response to make this court understand this would not be in the best interest of the child and the father trying to preserve a meaningful relationship with his son. I just find it frustrating that the court would honor this motion and just make it much easier for my ex wife to continue her on-going interference with my son and me. Knowing the court is expecting my ex to be a mature and positive role model from the April 09 court appearance. The reports I submitted to the court upon their request CLEARLY show otherwise.

Is your son still in CPS's custody? In CA?

 

[Ronin]

What are they arguing as the basis for the request to transfer venue? That although IL has jurisdiction, the child is now a resident of CA?

 

[LdiJ]

What are they arguing as the basis for the request to transfer venue? That although IL has jurisdiction, the child is now a resident of CA?

Until he answers the CPS question, it may be kind of moot.

 

[ILDad71]

Thanks for the your interest.

CPS released my son to me, although the timing couldn't have been any better for my ex, knowing my son was schedule to visit me 2 days later for his summer break, after CPS made the recommendation to release him to me. This is how the whole custody pet started… First off, CPS told me I must address this in family court and if I failed not to do so I would be consider a non-protective parent. I submitted my pet and the court sent my son back, knowing that the court had no reports to confirm my positions and the big question was if my son was safe to go back. CPS stated my Son’s living conditions are safe and the judge went on that and release him back to his mother for the time being. Knowing I made a point to tell the Judge at that time, it’s not where he lives, it’s the actions of his Mother, which I’m truly concerned about. Just to give you an idea, I posted a long-winded thread on 11-12, under frustrating father. This gives most of the details regarding my situation.

I look forward to your comments and suggestions

 

[ILDad71]

Dad needing Help

Sorry, I posted the long-winded thread on 11-11, not 11-12. This thread on 11-11 will truly give the details surrounding this case.

 

[Ronin]

It appears your ex's attorney is arguing that under UCCJEA, California should have jurisdiction over the child since he is now a legal resident of CA.

However, CA cannot take jurisdiction until Illinois voluntarily relinquishes it. So you need to convince IL to not give up jurisdiction.

Under UCCJEA, the state of original continuing jurisdiction over the child maintains jurisdiction until the home state court determines that:

1. Neither the child, nor a child and one parent, have a significant connection with the home state

AND

2. Substantial evidence concerning the children's care, protection, training, and personal relationships is no longer available in the home state.

Once the child has been a resident of the new state for awhile, it is generally accepted that #2 above will apply.

Which leaves you to argue #1 above, and there is conflicting case law on this. As a baseline, you should look up the Opinion in In Re Forlenza 140 S.W.3d 373, 379 (Tex. 2004), which although a Texas Supreme Court case, has pretty sound legal reasoning behind its interpretation of #1 and the AND qualifier in the UCCJEA. Illinois may have its own similar case law, so start with any issued by the IL Supreme Court, if there are any.

To prevail on #1 above you would have to first establish that you have strong ties to IL. Living there does so, and having family there will reinforce this. You then need to establish that your son also has close ties to the state. In the Texas case, it was sufficient to show that the child spent time in the the home state every year with the parent, in addition to having other family in the state.

So the conflicting case law appears to be with respect to exactly what establishes a significant connection with the home state. An appeals court felt yearly visitations to the home state did not constitute a significant connection with the state, and the Supreme Court said otherwise.

So the goal of your response is to plead sufficient facts to establish that your son does indeed have a significant connection with the home state, and cite applicable case law from your state to back this up.

 

[LdiJ]

Despite the disadvantage to you of court taking place in CA, I can see one possible advantage that could be significant.

In your other thread you mentioned hearsay problems. If the case took place in CA you would be able to subpeona all of those people in court to give direct testimony (police, cps caseworker etc.) which would eliminate your hearsay problem.

 

[ILDad71]

Dad needing Help

Ronin

Thanks for all your advice; I will continue to look into case law for IL. I think this will be the key to stop this motion going forward. I have a favor to ask, I don't know if you've read my post from 11-11 "a frustrated father” I would like to get your opinion regarding the facts surrounding the entire case. My ex wife’s action in June clearly undermines the positions and recommendation from the Judge in April. I find it hard to believe the Judge would just ignore the positions he made back in April. I do have the transcript from the April hearing. Should I make mention of his positions/recommendations and use the transcript as an exhibit in my response? It is so clear she will say anything to appease the court, but when she goes back to CA, she will continue with her destructive behavior. She has continued to make a mockery of this court and I also find it hard to believe a Judge would allow this to happen.

 

[ILDad71]

Ldij
Thanks for your advice, I agree the only advantage I have in CA is access to CPS and the Police. This incident took place 10hrs away from her residence and I don't know how easy it would be to have them appear. My biggest frustration is, if the IL courts can't figure it out by now, how will the CA courts do so. Also, why did the Judge continue to request this information and at the end of this process he’s going to change venue and state the information is hearsay. He specifically didn't tell me the CPS report was hearsay and this is something maybe I should ask. Is the CPS report hearsay? I find it contradicting that he will acknowledge my Son's doctor report from CA, but not a State agency report that had to go through the Northern CA courts to get released. I wish commonsense would exist somewhere down the line, but I understand the entire cause surrounding Father's rights and the law's that apply.

You read my long winded thread (thanks), As you can see there is so much history to this case in such a short time. Do I have any postions on that front to add to my response?

 

[Ronin]

Your request for a change in custody appears to hinge almost entirely on the DUI and the circumstances around this.

CPS is usually involved in such cases where a parent is placed under arrest, and another parent is not readily available to pick the child up. CPS did not take any court action on this, and passed in favor of allowing the family court to address any issues.

You are interested in what the child said referring to the boyfriend as 'dad' and attempts at evasiveness. But, even CPS testifying as to what the child said is also hearsay, and in the context of what was said regarding the confusion with who is dad, such a statement would not likely be a hearsay exception.

If without the DUI you would have had no case at all for a change in custody, then it is unlikely this will be sufficient by itself to make a case.

In other words, unless you have a lot of other evidence such that this DUI is only icing on the cake, it is unlikely this DUI and surrounding issues (calling BF dad and such) will be cause for the court to order the child be taken from his mother in California and given to you in Illinois.

It is more likely the court will order the mother take steps to assure the court these issues and any visitation issues will not happen again.

 

[ILDad71]

Ronin

I will try to bullet point the main facts regarding this custody dispute. At least you can see my side and give a 3 party opinion

1. DUI, .13BAC, 90mph, 2 load handguns in the car.
2. My son could have been killed that night form her actions, as well as her and other innocent victims
3. CPS drug test confirms she was on Vicodin's as well.
4. She has 2 priors... 2004 forgery and 2006 for shoplifting
5. CPS report and the Police report has my son last name as her BF last name. (Written on the reports)
6. This is why CPS kept my Son, because her story wasn't matching up on all fronts. So many Lies... They ran a search and found my son was not my Ex’s BF and my Ex and her BF wasn't married and she has used this in the IL courts many times too. Just back in April 09, they even used this to try to stop one of my visitations. (Funny that is was the year I became remarried with my present wife and my Son was apart of the wedding)
7. CPS reported my ex’s BF admitted, he was ask to lie regarding his legal relationship with my son (being his Father)
8. Report stated that when they ask my son questions he used gestures to zip his mouth and throw away the key. They ask if he was not supposed to talk and he nodded yes.
9. CPS report states they had to convince my son repeatedly, that I was his real Dad.
10 CPS interview with my ex’s mom, and she stated she will definitely lose custody now
11. CPS and Police reports also confirm she has no disabilities and she use this in the IL court on a few major issues in the last 4 years as well in April 09
12. This is where I believe the IL court has to take some responsibility , just not sending it to CA
13. Clearly the court received a pretty picture from my ex and her lawyer that she was not trying to interfere with my relationship with our son and she has always continued to enforce the relationship.
14. IL court made specific recommendation on how to proceed forward as mature parents to ensure the child has a healthy and evolving relationship with both parents. As I said in my first thread, his speech was clearly directed to my ex- wife, if you can read between the lines that day.
15. This is where my frustration is with the IL courts…. not addressing the recommendations and positions they made back in April 09. Should I reintegrate these positions for the court in my response?
16. Seems you have allot of knowledge in this field and I would bet you would agree that when a Court puts a $3500.00 fee to each violation of visitation interference, they have realized who is at fault????

It seems this incident isn’t seriously enough to change custody. But the IL court has so much knowledge and history to this case and has made a position to take serious actions if we ignore the courts recommendations back April/ 09. Right now it seems to be all talk and no action.

This is way I’m struggling with my response to their motion, knowing I have one chance to convince this court.

Ronin, thanks for all your time regarding this matter

 

[Proserpina]

Quick question - if I missed it earlier, I apologise.

But did she have a prescription for those narcotics?

 

[Ronin]

Should I reintegrate these positions for the court in my response?

If by this you mean a response to a motion to transfer venue, then no. Limit your response to the issue raised in the motion. And that is whether or not the child has enough of a connection to the state for it to retain jurisdiction.

13. Clearly the court received a pretty picture from my ex and her lawyer that she was not trying to interfere with my relationship with our son and she has always continued to enforce the relationship.

And your ex's attorney will continue to present this picture and to minimize all the issues you raised, at least well enough to prevent the court from changing custody anytime soon.

You are fighting a strong legal status quo in which the mother hs been the custodial parent for a long time, and a hard fact courts are very reluctant to change such things without very compelling evidence. The legal presumption is that the last custody order naming her custodial parent was in the child's best interests, and that it still is. The burden is on you to prove her unfit, or at least that it will be in the childs best interests to relocate away from his mother in CA to IL. Not likely to happen based upon your facts alone, which is compounded by the fact you are representing yourself.

But if you feell strongly enough about it, then do your homework and present your case as best you can. Maybe others here can offer differing perspectives or opinions on your case. Other folks here have insight and experiences I do not. So you should take anything I say with a grain of salt and listen to what others have to say, then draw your own conclusions on what is best for your situation.

Good luck...

 

[ILDad71]

Proserpina

She does not have a prescription for those narcotics as far as I know, the Police report states no disabilities and in the CPS Report, she claims she had a stoke back in 2004 and this is the reason why she’s continues to take vicodin's. However when CPS spoke to my son and her mom they both stated she had no disabilities and her mom even stated she had no side effects from the stroke. I truly believe it was a drug overdose most likely vicodin's, cough medicine.. Because I truly believe she is an alcoholic today, knowing the CPS report stated she had a drink at every rest stop going up the I-5. (Southern Ca to Northern CA , 40 miles from the Oregon state line.


You’ll like this, this is another lie she has used in IL Courts and still continues to use. The stroke first came up in 2004 allowing her not to appear for a hearing in IL for visitation interference. They have used this disability for the last 5 yrs to help benefit their positions. Knowing she walk in the courtroom with a cane for the April/09 hearing. 45 days later when this whole incident took place all reports show no sign of a cane and no disabilities. If this were true, this would have been an issue the DUI field-test. But she stated she had no disabilities to proceed with the field -test. This has always been my frustration as well, she continues to get away with so many lies in the court, and it’s truly amazing why the IL courts struggle to figure this out. I even highlighted these issues in my custody petition and supplement affidavits.

Getting back to the vicodin's, I should probably do a discovery on this matter. I just need to know how to go about it...