Any advice?

[LdiJ]

You dont' share it jointly if you expect him to fly to TX to pick up the kids and fly back with them. Sharing it jointly would mean you would have the children up to their dad and he would fly them back to you.You stated you didn't have to take the children to the gate but you did because you respect him. Ummm.. no. You got pregnant by another man while married to him -- that is not respect.

Oh and just to let you know, don't be surprised if there is a restraining order on removing the children from NY at this juncture until the divorce is finalized. That is extremely normal. The children will remain under NY courts until the divorce and custody are settled.

Isn't it normally the other way around...the recieving parent is responsible for transportation if its split? In any case, I don't see where it was implied that dad was the one who was going to fly back with the kids.

In response to another post....

Yes, she obviously got pregnant quickly, but its not that odd. She moves back home, meets up with an old friend/boyfriend and "opps" gets pregnant....then decides to move in with him because she is pregnant.

Looking at the timeline I suspect that is the motivation for dad's current actions. He is probably raw enough from the separation that he is not dealing with this pregnancy well.

It does seem to me though that its flimsy grounds for emergency custody.....just months after he signed an agreement that she would have primary custody and giving permission for her to move to TX with the kids. It wouldn't fly in my state....but others know more about NY law than I do.

 

[Ohiogal]

Isn't it normally the other way around...the recieving parent is responsible for transportation if its split? In any case, I don't see where it was implied that dad was the one who was going to fly back with the kids.

In response to another post....

Yes, she obviously got pregnant quickly, but its not that odd. She moves back home, meets up with an old friend/boyfriend and "opps" gets pregnant....then decides to move in with him because she is pregnant.

Looking at the timeline I suspect that is the motivation for dad's current actions. He is probably raw enough from the separation that he is not dealing with this pregnancy well.

It does seem to me though that its flimsy grounds for emergency custody.....just months after he signed an agreement that she would have primary custody and giving permission for her to move to TX with the kids. It wouldn't fly in my state....but others know more about NY law than I do.

Oh I am not saying it is emergency custody. that would require some cause of the children being placed in harm if they are returned. What I am saying is that in most divorces with children a restraining order is AUTOMATICALLY put in place to prohibit the children from being removed from the court's jurisdiction until custody is set. My comment about transportation being split was based on the idea that she said she didn't "have to" go to the airport with the children. As that was some huge sacrifice. Which it is not truthfully.

 

[Noelle_71]

In March 2006, you were given permission to move out of state. By June 2006, you were pregnant with another man's child. So, if you weren't already pregnant with this man's child before you moved, then in the last 3 months you've been doing quite a lot. Let's see, you moved to TX, but NOT with the current man, then you uprooted your entire family from whereever you were living, moved them into this man's place, and then got pregnant. In either case, you sure do move fast, for a married woman!

What presumption was made? Unless we know the full story, you cannot get upset that we don't know the full story. And unless you want to tell the rest of the sordid details of your full story, then you will have to put up with the conclusions that we draw.

And, do you think that the judge will draw conclusions any differently? He won't sit there while you tell the full story...

Actually, she never mentioned moving to Tx to be with another man, she said her father...

 

[LdiJ]

Oh I am not saying it is emergency custody. that would require some cause of the children being placed in harm if they are returned. What I am saying is that in most divorces with children a restraining order is AUTOMATICALLY put in place to prohibit the children from being removed from the court's jurisdiction until custody is set. My comment about transportation being split was based on the idea that she said she didn't "have to" go to the airport with the children. As that was some huge sacrifice. Which it is not truthfully.

My point was though that they DID set custody via their legal separation. This was stated in the first paragraph of her first post:

On January 30th 2006, my husband and I went to court and we settled out of court. He signed papers giving me consent to leave the state of NY, to my home state of Texas, while also giving me residential custody of our children. We share joint custody and he has whole summer visitations, and every other Christmas and Spring Breaks starting in the year of 2007. On Febuary 15th of 2006, we went to his lawyers office and signed a stipulation agreement and I left the next day to Texas because my father came and picked my children and I up along with whatever we could bring.

So, my entire point was that how can he legitimately re-open the issue of custody now?...particularly on an emergency basis which is what he appears to be attempting? Are you saying that because he is now filing for divorce, it negates the previous custody agreements and negates the permission he officially gave for her to move the children to Texas?

I was also confused on the issue of his attempting to obtain custody of the unborn child, but it makes sense that it would force her to prove the adultery.

 

[stealth2]

She never said it was on an emergency basis - it was simply one idea I threw out. But apparently no divorce papers were filed, and he's done so now. So OG may well be right that the kids will be staying in NY for now.

 

[Ohiogal]

My point was though that they DID set custody via their legal separation. This was stated in the first paragraph of her first post:



So, my entire point was that how can he legitimately re-open the issue of custody now?...particularly on an emergency basis which is what he appears to be attempting? Are you saying that because he is now filing for divorce, it negates the previous custody agreements and negates the permission he officially gave for her to move the children to Texas?

I was also confused on the issue of his attempting to obtain custody of the unborn child, but it makes sense that it would force her to prove the adultery.

Okay he is not re-opening it on an emergency basis. He is reopening it in the divorce. A divorce is a different proceeding than a legal separation. Circumstances have changed. With a separation reconciliation is a possibility so what stands for that is not necessarily what is going to happen with the divorce. He didn't file for custody on an emergency basis. He may just ask the court that until a permanent custody plan is in place (the separation agreement was only during the legal separation and this is a DIFFERENT legal proceeding), the children remain in New york.
legally the unborn child is his. He is the OPs husband and any child born of a marriage is a product of that marriage unless the "real dad" steps forward. So he claims custody and either real daddy steps forward or legal daddy gets all rights. If real daddy steps forward OP has to admit in court that she is an adulterer. Which works in the favor of daddy. The court will grant him a divorce on charges of adultery and he never has to open his mouth to prove it. Mommy proves it. If mommy doesn't prove it herself with the help of boyfriend then boyfriend loses his child.

 

[Ithildriel]

Okay he is not re-opening it on an emergency basis. He is reopening it in the divorce. A divorce is a different proceeding than a legal separation. Circumstances have changed. With a separation reconciliation is a possibility so what stands for that is not necessarily what is going to happen with the divorce. He didn't file for custody on an emergency basis. He may just ask the court that until a permanent custody plan is in place (the separation agreement was only during the legal separation and this is a DIFFERENT legal proceeding), the children remain in New york.
legally the unborn child is his. He is the OPs husband and any child born of a marriage is a product of that marriage unless the "real dad" steps forward. So he claims custody and either real daddy steps forward or legal daddy gets all rights. If real daddy steps forward OP has to admit in court that she is an adulterer. Which works in the favor of daddy. The court will grant him a divorce on charges of adultery and he never has to open his mouth to prove it. Mommy proves it. If mommy doesn't prove it herself with the help of boyfriend then boyfriend loses his child.

This was interesting and informative. Thanks OG.

 

[ezmarelda]

This was interesting and informative. Thanks OG.

OG is my hero today! ...she has given some of the best advice ever ...check it out https://forum.freeadvice.com/showthread.php?t=325583#post1410612

 

[AHA]

Actually, she never mentioned moving to Tx to be with another man, she said her father...

Which is even worse, because that means that she jumped in bed with a new guy 5 mins after arriving in TX, and started having UNPROTECTED sex like there's no tomorrow before giving her kids a chance to get used to their new life and surroundings. That's not only way too fast, it's way too irresponsible when she should have been prioritizing getting her kids settled and stable instead of getting laid.

 

[rmet4nzkx]

It would appear that they signed the separation agreement in anticipation of NY's "no fault" divorce. OP signed the separation agreement in bad faith.

New York has six grounds for divorce. Four of the "grounds" are based on the "fault" of one of the parties cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, and adultery.

The other grounds one year of living apart under a separation judgment granted by a Court, or under a separation agreement signed by the parties, enable them to obtain a "no-fault" divorce, in which neither spouse is judged to be at fault, provided that the spouse seeking the divorce has substantially complied with the provisions of the judgment or agreement.

OP, as demonstrated by her actions (only 4 months from the date she left and already pregnant), has broken the agreement by commiting adultery and by not compling with the agreement. This open the door for her husband to file for a default divorce, custody and child support. Visitation will likely be on his terms as well with OP paying for transportation, this turn of events will also affect child support and any property settlement. I'll bet the fact that she took the children to the airport herself tiped him off to the fact that she is pregnant or one of the children told him. Guess who is going to be paying child support until these children are 21? Dad has also done well to petition for the appointment of a Law Guardian for the children. OP better be sure that her "companion" has lots of money.
www.paternitynet.com/art11.html

Paternity may be established in one of three ways:

1. If the parties are married, New York presumes the husband of any children of the marriage. This presumption can be rebutted.


2. Paternity can be established by the proper execution of an acknowledgment of paternity. See Family Court Act Section 516.


3. Paternity can be established by a court order.

A paternity proceeding is commenced in Family Court by the filing of a verified petition from the party seeking to establish paternity. If the woman is married, her husband must usually be named as a party to the proceeding.

Once the parties are in court, they have the option to consent to an order of paternity. Consenting to an order of paternity means that there is no question as to who is the father of the child, and that neither side is requesting blood or DNA tests. It is very difficult to overturn a consent order of paternity, so if there is any question of paternity, the order should not be entered on consent. Such an order may very well stand even if down the road it is found that the legal father is not the biological father.

If there is no consent order of paternity, the court will generally order blood or DNA tests. Once the results of the blood or DNA tests are know, the parties once again will generally have the option to consent to an order of paternity, or request a hearing.

If the case goes to a hearing, it is the party seeking to establish paternity to prove paternity by clear and convincing evidence. If, however, the probability of paternity in the blood or DNA tests is 95% or higher, New York law presumes the man is the father, and it is now his burden to overcome this presumption. At the end of the hearing, the court will consider all properly introduced evidence, and either issue an order of paternity or dismiss the paternity petition.

Also of note, OP is not a resident of TX and already under the jurisdiction of NY, this will be interesting.

 

[Noelle_71]

Which is even worse, because that means that she jumped in bed with a new guy 5 mins after arriving in TX, and started having UNPROTECTED sex like there's no tomorrow before giving her kids a chance to get used to their new life and surroundings. That's not only way too fast, it's way too irresponsible when she should have been prioritizing getting her kids settled and stable instead of getting laid.

No, she said she's known this man all her life..not a stranger.
There are men out there, case in point the one that I thought was committed to me, that got ME pregnant after 5 years, and was sleeping with another woman behind my back and left me when I told him I was pregnant. How do you feel about that?
Actually, it doesn't matter, it's a legal forum, I'm digressing.
I don't think any of us can judge this woman's personal choices, its not up to us to set moral standards for her and we don't know the whole story..she sounds rational and intelligent to me...shrug.

 

[CandiceH]

No, she said she's known this man all her life..not a stranger.
There are men out there, case in point the one that I thought was committed to me, that got ME pregnant after 5 years, and was sleeping with another woman behind my back and left me when I told him I was pregnant. How do you feel about that?
Actually, it doesn't matter, it's a legal forum, I'm digressing.
I don't think any of us can judge this woman's personal choices, its not up to us to set moral standards for her and we don't know the whole story..she sounds rational and intelligent to me...shrug.

Oh sheesh! Rmet has given all the correct legal advice under NY family law so no more is needed. The OP made her bed. She was ignorant of the laws and her stbx did the right thing. She sees it as vindictive, he sees it as protecting HIS rights. She is in for the battle of her lifetime or will she just "give up" and make a new life? More drama to follow in the next episode**************.

 

[Noelle_71]

It would appear that they signed the separation agreement in anticipation of NY's "no fault" divorce. OP signed the separation agreement in bad faith.

New York has six grounds for divorce. Four of the "grounds" are based on the "fault" of one of the parties cruel and inhuman treatment, abandonment for one or more years, imprisonment for three or more years, and adultery.

The other grounds one year of living apart under a separation judgment granted by a Court, or under a separation agreement signed by the parties, enable them to obtain a "no-fault" divorce, in which neither spouse is judged to be at fault, provided that the spouse seeking the divorce has substantially complied with the provisions of the judgment or agreement.

OP, as demonstrated by her actions (only 4 months from the date she left and already pregnant), has broken the agreement by commiting adultery and by not compling with the agreement. This open the door for her husband to file for a default divorce, custody and child support. Visitation will likely be on his terms as well with OP paying for transportation, this turn of events will also affect child support and any property settlement. I'll bet the fact that she took the children to the airport herself tiped him off to the fact that she is pregnant or one of the children told him. Guess who is going to be paying child support until these children are 21? Dad has also done well to petition for the appointment of a Law Guardian for the children. OP better be sure that her "companion" has lots of money.
www.paternitynet.com/art11.html


Also of note, OP is not a resident of TX and already under the jurisdiction of NY, this will be interesting.

You are assuming an awful lot here. She only said they went to court and settled out of court, you can't assume that they were living together, maybe they were apart. Also, what if HE had cheated and thats why he agreed to give her the children and sign off on her moving out of state. There are a lot of if's here and I really don't feel that anyone should rush to judgement unless she comes back and gives more info.
Now I'm not from NY but my ex and I had a similiar arrangement where we were legally seperated and I moved away with the kids. Yes, he consented, yada yada. There was a point, during their visits, where he tried to keep my children, saying that legally, nothing had been decided, but all I had to do was present the judge here with the agreement and the judge signed an order which I in turn took to the military security police and he had to give them back.
I know the situations are different, but don't you think that when a poster comes here asking for advice/assitance, one shouldn't attack her and tell her what she should or shouldn't do with her and her children's lives? There are too many what ifs..Dad could be an abuser, a druggie, an emotional basket case, or he could be normal and a fine father figure. However, just from reading that he wants to claim a child that he knows is not his, just to cause the mother grief...that says an awful lot, don't you think? Using a child as a pawn..tsk tsk.

 

[nextwife]

No, she said she's known this man all her life..not a stranger.
There are men out there, case in point the one that I thought was committed to me, that got ME pregnant after 5 years, and was sleeping with another woman behind my back and left me when I told him I was pregnant. How do you feel about that?
Actually, it doesn't matter, it's a legal forum, I'm digressing.
I don't think any of us can judge this woman's personal choices, its not up to us to set moral standards for her and we don't know the whole story..she sounds rational and intelligent to me...shrug.

Ummm, she is still married to someone else! And she MOVED the kids, while still adjusting to mom and dad not being together AND adjusting to being uprooted from everything they knew, into another man's home and slept with him while her kids were under the same roof. Still married.

I don't care how long she "knew him" she shoulda kept him at a distance from her kids, at least until the ink was dry on a divorce.

BTW- I knew my husband five years before we got married, but I sure as heck didn't let myself get pregnant by him until AFTER we had a year of marriage together. Knowing someone a long time does NOT mean one is entitled to be reckless.

 

[Noelle_71]

Oh sheesh! Rmet has given all the correct legal advice under NY family law so no more is needed. The OP made her bed. She was ignorant of the laws and her stbx did the right thing. She sees it as vindictive, he sees it as protecting HIS rights. She is in for the battle of her lifetime or will she just "give up" and make a new life? More drama to follow in the next episode**************.

*shrug* I still don't see how you can make that call with so little info.