Emergency Motion To Appoint a Custodial Parent

[Mr Diversity]

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

My estranged wife and I agreed in principle to a Separation, Custody and Property Settlement Agreement which was signed and notarized n June 2011. As is permissible in Virginia, this contract was never entered into the court as an order but remained as a contract between two consenting adults. I drafted the 15 page document myself and although reviewed by, was never represented by legal counsel. This agreement is very evenly split in all facets giving equal time to each parent. On the domicile location of the parents it stated in part, "she was to reside in the same County to make joint legal and physical custody logistically possible while residing in the same school district”. The custody schedule was basically one week on, one week off and alternating holidays.

Although legally separated we still shared the same house but lived in separate rooms. This week (2/26 - 3/4) was her designated week to have the children and her first after officially moving out of the marital residence last Friday. I was told she as per the agreement would “give me the address where she was staying before she took the kids”. She was at my house on Sunday watching the kids while I went to work.

After work Sunday afternoon I returned to my home to find a note telling me that she had taken the kids to WV, without my consent or a 30 day advance written notice. She did inform me of her action, address where staying (her parents), the “kids are safe” and if questions contact my attorney. I have not been served as of yet with any papers from the Sheriff. The children have now been out of school for 2 days

I have been told that I cannot file with the courts without going through Juvenile Intake, which as a 30 day waiting time.... or I can hire an attorney who can bypass Intake and file for an emergency hearing but am on VERY limited funds. What is the best and fastest way to get on the docket and have the courts appoint a temporary Custodial Parent?

Thank you for your time, energy and effort.

 

[ecmst12]

Since mom has a lawyer and has removed the children from the jurisdiction and time is a factor...hire a lawyer.

Your notarized agreement means nothing. You both have equal rights to the children at this point so if you want to contest the moveaway, you need to do so quickly.

 

[meanyjack]

I would also add that jurisdiction is an issue here. While Mom went to another state, they will not have jurisdiction because she has not been there long enough.

BUT, there is nothing stopping YOU from filing. In fact, I would NOT wait. Don't wait to get paperwork from her -- if in fact she does have a lawyer and/or is going to file anything. Look online at the court's website in the county/jurisdiction you live and see if there are basic forms that can be printed out and filed with the court to get the ball moving. You can also file an emergency hearing to have the children returned to where you are at immediately and cite the relevant FACTS.

Did she actually give you the contact info of an attorney?

 

[Mr Diversity]

Yes, she did give me her attorney's card so I have his contact info. My whole question was basically HOW do I file for an emergency hearing? Even if she has filed for custody, I doubt she would get it. She has gone to another state and can show no means of support (neither here or there). She doesn't have a job, a place to live or any money saved and is in fact on unemployment due to her seasonal job.

My house is the only house the two children have ever known. The school my 7 year old attends is a public school but is a "school of choice" and not easy to get in. The level of education is leaps and bounds over what they would get in the other state. No judge in the world could say that it was in the children's best interest to live with her.

I have a friend that has known the kids since birth who holds a Masters in Child Psychology who just happened to have watched them overnight the day before they were taken. She was going to ask them how they felt about "mommy moving out" but didn't because the children were so "grounded and happy" she didn't want to bring up the subject. So obviously 24 hours after she moved out it was not a major issue on the kids minds. She is willing to state that it would be in the best interest of the kids to live with me.

 

[stealth2]

Yes, she did give me her attorney's card so I have his contact info. My whole question was basically HOW do I file for an emergency hearing? Even if she has filed for custody, I doubt she would get it. She has gone to another state and can show no means of support (neither here or there). She doesn't have a job, a place to live or any money saved and is in fact on unemployment due to her seasonal job.

So - she has been their primary caregiver?

My house is the only house the two children have ever known. The school my 7 year old attends is a public school but is a "school of choice" and not easy to get in. The level of education is leaps and bounds over what they would get in the other state. No judge in the world could say that it was in the children's best interest to live with her.

That is your opinion. And it could well be wrong. Especially if she has a professional working for her, and you don't.

I have a friend that has known the kids since birth who holds a Masters in Child Psychology who just happened to have watched them overnight the day before they were taken. She was going to ask them how they felt about "mommy moving out" but didn't because the children were so "grounded and happy" she didn't want to bring up the subject. So obviously 24 hours after she moved out it was not a major issue on the kids minds. She is willing to state that it would be in the best interest of the kids to live with me.

Good thing she was smart enough to stay out of it. Mom's lawyer could slam her for her involvement. And since she's your friend? Her "opinion" may not matter all that much. She's obviously biased.

 

[meanyjack]

No judge in the world could say that it was in the children's best interest to live with her.

That is not true.

I have a friend that has known the kids since birth who holds a Masters in Child Psychology who just happened to have watched them overnight the day before they were taken. She was going to ask them how they felt about "mommy moving out" but didn't because the children were so "grounded and happy" she didn't want to bring up the subject. So obviously 24 hours after she moved out it was not a major issue on the kids minds. She is willing to state that it would be in the best interest of the kids to live with me.

That person's opinion is irrelevant. "best interest" is a legal determination made by a court.

You're losing focus here. You NEED to have the children returned to where they've been IMMEDIATELY!! You need to Google the court in your jurisdiction and look at their website to see if there are files online you can print and fill out and file.
You file an emergency motion and motion the children to be returned at once, for primary physical custody pending a hearing, supervised visitation with mom -- and you state SIMPLY THE RELATED FACTS! You do not get into emotional/opinionated stuff.
IF there's been "status quo", you mention that. If the kids have not been in school since mom left, you mention that. The important thing here is for YOU to get the kids back in YOUR house, for YOU to have primary physical custody for time being and get a hearing scheduled to work out stuff. It can be used to POSSIBLY establish status quo, etc with the children.

If you have a bar association in your area, call them and see about getting a referral to a family law (or similar) attorney. They usually charge a nominal fee for the referral, but it'll get you about 30 mins or more w/an attorney.

 

[Mr Diversity]

How do I know which forms to print and file?

 

[stealth2]

How do I know which forms to print and file?

If Mom has a lawyer, you seriously do not want to do this on your own. There are lawyers who will work on a payment plan with you. I strongly suggest that route.

 

[Ohiogal]

I have a friend that has known the kids since birth who holds a Masters in Child Psychology who just happened to have watched them overnight the day before they were taken. She was going to ask them how they felt about "mommy moving out" but didn't because the children were so "grounded and happy" she didn't want to bring up the subject. So obviously 24 hours after she moved out it was not a major issue on the kids minds. She is willing to state that it would be in the best interest of the kids to live with me.

Would she have asked how the kids felt about YOU not being there? Oh yeah, they were happy without mom being around but they were also happy without you not being there because she was watching them overnight.

As for your friend? I could tear apart her ethics for believing that SHE can tell by one evening the children's emotional and mental mindset and what they were thinking, feeling and wanting. I could also cast aspersions as to why dad would have left the children OVERNIGHT with a "friend" while he was -- what exactly were you doing? I could also paint you as an awful parent because you put that job to others so you can have fun ... see where this is going?

Oh and your friend -- is she your new love? Have you ever dated with her? Ever slept with her?

 

[Mr Diversity]

Update... I have gone to the Juvenile Intake, had the papers drafted for custody and visitation and filed them with the Clerk of the Juvenile and Domestic Relations Court. I am to "hear back from the sheriff's office in 4 to 6 weeks on the date of the hearing". During this time they are STILL not in school. I have left a message for the local Truant Officer

Again, my question is "how does one file for an emergency hearing to bring the kids back in the district and back to the school that they are enrolled in?" I welcome the discovery process and having a host of people crawling up my anal cavity with a microscope. I would even welcome maintaining our original agreement of joint legal and physical custody because I believe they children need both parents in their life... but during the discovery want them back in the school where they are supposed to be. Taking them across state lines and breaking a contract to do so because she simply changed her mind doesn't mean it "was in the best interest of the child". The opinion of obtaining legal Council is great in theory but the balance in my banking accounts breeds a different point of view.

 

[Mr Diversity]

Would she have asked how the kids felt about YOU not being there? Oh yeah, they were happy without mom being around but they were also happy without you not being there because she was watching them overnight.

As for your friend? I could tear apart her ethics for believing that SHE can tell by one evening the children's emotional and mental mindset and what they were thinking, feeling and wanting. I could also cast aspersions as to why dad would have left the children OVERNIGHT with a "friend" while he was -- what exactly were you doing? I could also paint you as an awful parent because you put that job to others so you can have fun ... see where this is going?

Oh and your friend -- is she your new love? Have you ever dated with her? Ever slept with her?

Ms. OhioGal... Since this forum is very one dimensional, it is hard to explain all of the caveats without writing War & Peace all over again and understand your point of view. As a Guardian Ad Litem I appreciate your candor and position as "Devils Advocate" to help me understand the scrutiny I am about to endure. To further understand the situation and to get your renewed thoughts would be very much appreciated.

My friend by any measure is more than capable of making an ethical and unbiased opinion of my children's mental state and welfare because she has known them all of their lives. I have asked her consistently throughout my separation for her view on how the kids are doing mentally because I want this rift to take as light of toll on them as possible. When I asked her to "have a talk with the kids to see how they are taking their mother moving out" it was out of pure concern and nothing else, their mother did not abscond with them until the next day. She is such a good friend and confidant that my now estranged wife and I agreed in our Wills that if we were to perish together in some sort of fiery crash that my friend in question and her husband would have custody of our children. We see the way they raise their two children and would want the same healthy environment for our children. Not to mention that our kids are and have always been close even with an age gap of 9 years from oldest to youngest.

She and her husband volunteered to watch my kids this past Saturday night because a last minute business meeting popped up. I am a Realtor and this was concerning a Listing of mine and the client flew in from CA and was leaving again the next day. I was on my way home from the District by 11pm but she had put them to bed at 10pm so advised me just to come get them in the morning. The ONLY time I have ever retained a sitter when my kids are with me is for business reasons. I am not the party animal I was 20 years ago but when I do only go out when I don't have the responsibility of my children.

All intentions are good and there is nothing going on between the sheets. I have followed advice I received and have not had any type of relations with anyone until the final decree has been issued as to make sure there is no consideration of adultery.