Father's Rights - Unborn Child

[UnbornChild]

Oh, you didn't confuse me. It's just that I caught her misstep, and certainly your son's attorney should have.

She has possibly commited perjury on one of her sworn testimonies. The baby was either conceived in WA, or in MT, she can't claim BOTH to suit her agenda.

Most certainly, if I were your son's attorney*** I'd bring this little factoid to the courts attention! Not the due date part, but the fact that she has stated in 2 separate court documents 2 different things about the same incident and sworn each to be truthful. Goes to her credibility.

***Disclaimer: No, I'm not an attorney. I'm only my own attorney but pro se doesn't count.

Well, yes and no. Basically, she states in her response that she had sex in Wa AND Mt but most probably, the conception took place in Mt because of the due date. BUT, her smart, spritual group forgot how to do math!! ARGHH! This is what is ticking me off so badly. And that is why I ask if the judge needs to hear about it or if he gets it. I don't think she committed perjury. I think when I wrote that, I was trying to keep things simple. Good thing I am not under oath!

 

[Whyte Noise]

Ok, I see what you're saying.

I'd still talk to the attorney about bringing it up. In order for the WA judge to issue an order for them before the child was born, she swore under oath (whether verbal or written in an affidavit) that the child was indeed conceived in WA. Now, she's trying to change her story to suit her needs. It could still go to her credibility I think.

As a sidenote: I'd ask your own OB/GYN or even a GP to calculate an estimated conception date based on the due date she gave in her latest court filings. This is to get an accurate medical professional's opinion and not just mine from fuzzy math and not knowing the actual EDD she listed. This wouldn't be admissable in court, but a quick phone call may could get you some ideas of when it actually occured based on what she said her due date was in her filing.

However, I still feel that the jurisdiction for the custody issue is going to be Montana. Like I said before, the child's home state is the one that makes the custody determination and the child is a resident of MT, has been since the day it was born, and has never lived anywhere else. The WA judge made an order for the 2 parents. A child can't have a home state until it's born so the WA judges ruling can not be for custody.

Do you happen to have the WA judges order handy to where you can type it in here verbatim? Not the petitions or anything, only the order that the judge signed. Perhaps that would help us better know exactly what it is he ruled on.

 

[LdiJ]

Oh, you didn't confuse me. It's just that I caught her misstep, and certainly your son's attorney should have.

She has possibly commited perjury on one of her sworn testimonies. The baby was either conceived in WA, or in MT, she can't claim BOTH to suit her agenda.

Most certainly, if I were your son's attorney*** I'd bring this little factoid to the courts attention! Not the due date part, but the fact that she has stated in 2 separate court documents 2 different things about the same incident and sworn each to be truthful. Goes to her credibility.

***Disclaimer: No, I'm not an attorney. I'm only my own attorney but pro se doesn't count.

Her credibility will be important when it comes down to making custody/visitation decisions....and even more important if there ends up being contempt issues.

However, that still doesn't change the fact that Montana CAN take jurisdiction of this child under the UCCJEA.

Which gets me back to my primary concerns....and that is to a great extent the financial situation...and the potential of serious delays if there ends up being a major jursidictional battle.

OP's son has paid a hefty retainer to the WA attorney (which he won't get back if Montana takes jurisdiction). On top of that, he is going to have to hire an attorney in Montana if for nothing else than to challenge Montana having jurisdiction. His WA attorney can't handle that for him unless he happens to be also licensed in Montana...and travel costs would make it just as expensive. I can see him having to spend at least 5-6 grand just on the jurisdictional issue....and possibly much more, between the two attorneys. It can also cause many months of delay in him getting a regular visitation schedule with the child.

Lets make sure that OP understands that there is almost no chance that Montana is going to release jursidiction to WA without a hearing, which means her son has to have an attorney to represent him at that hearing. Therefore he needs to be consulting with a Montana attorney NOW. Otherwise Montana could take jurisdiction by default.

Again, I think that the end result for dad is going to be virtually the same no matter which state has jursidiction.

The bottom line is that dad absolutely has to consult with a Montana attorney because paperwork has been filed in Montana, and Montana can take jurisdiction under the UCCJEA. Maybe a consult with a Montana attorney will further clarily things for him.

 

[LdiJ]

Ok, I see what you're saying.

I'd still talk to the attorney about bringing it up. In order for the WA judge to issue an order for them before the child was born, she swore under oath (whether verbal or written in an affidavit) that the child was indeed conceived in WA. Now, she's trying to change her story to suit her needs. It could still go to her credibility I think.

As a sidenote: I'd ask your own OB/GYN or even a GP to calculate an estimated conception date based on the due date she gave in her latest court filings. This is to get an accurate medical professional's opinion and not just mine from fuzzy math and not knowing the actual EDD she listed. This wouldn't be admissable in court, but a quick phone call may could get you some ideas of when it actually occured based on what she said her due date was in her filing.

However, I still feel that the jurisdiction for the custody issue is going to be Montana. Like I said before, the child's home state is the one that makes the custody determination and the child is a resident of MT, has been since the day it was born, and has never lived anywhere else. The WA judge made an order for the 2 parents. A child can't have a home state until it's born so the WA judges ruling can not be for custody.

Do you happen to have the WA judges order handy to where you can type it in here verbatim? Not the petitions or anything, only the order that the judge signed. Perhaps that would help us better know exactly what it is he ruled on.

Personally, I think this is one of those issues where the judge decided to "push the envelope" a bit. Maybe even in the hope that mom would conceed WA's jurisdiction, which mom has not. I bet its even possible that written orders were never made. I could be completely wrong...its just a guess.

 

[rmet4nzkx]

There were orders, written orders, shown to the hospital, Please, lets keep to the facts in evidence.

Both WA and MT have accepted the UCCJEA however there are some aspects of it that must still be considered. The UCCJEA has a provision re jurisdiciton wherein the jurisdiciton stays in the state where the custody action is filed and the court has taken action as WA has. There is no custody action existing in MT, only the motion to chnage the venue of the existing WA custody case to MT prior to the judges rulings on paternity/custody/parenting plan. This petition in and of it's self acknowledges the WA currently has jurisdiction, since they are asking that it be moved. The paternity action filed/served before the child was born and both parents were residents and the child's home state according to WA statutes. The child's "home" state is 1 of 4 factors to be considered. The only reason the child is in MT is because the mother effectively abducted the child and left the jurisdiction after accepting service of the paternity action. The UCCJEA is meant to enforce and the PKPA.

The original drafters of the UCCJA always thought that the home state of the child was the best state within which to find the information for making a custody decision in the best interests of the child. However, it was also assumed that once a court took jurisdiction on any other acceptable basis, that state should be able to proceed without delaying to determine if some other state has home state status. In this case, both parents were WA residents and insofar as the evidence, conception also took place in WA althought this is being argued. Once proved, the conflict between the mother's 2 conflicting claims, most likely the claim of MT jurisdiction based on conception will be dismissed, unless there is evidence in her medical record of possible conception in the first week of Nov. 2004.

The drafters of the PKPA took the opposite position. The home state was deemed so much better than any other jurisdictional ground, that it should always be the priority ground. Under the PKPA the home state always has the first opportunity to take jurisdiction. The argument here is what is the home state, it may not be where the child was born.

The UCCJEA now supports the PKPA position (which was the de facto law in each state because of Federal preemption. Any state that is not the home state of the child will defer to the home state, if there is one, in taking jurisdiction over a child custody dispute. Temporary emergency jurisdiction may be taken, but only long enough to secure the safety of the threatened person and to transfer the proceeding to the home state, or if none, to a state with another ground for jurisdiction. This is the limbo in this case, it is not clear cut as it may seem. Why is that?

CONTINUING EXCLUSIVE JURISDICTION

The UCCJEA also provides for continuing exclusive jurisdiction. If a state once takes jurisdiction over a child custody dispute, as WA has, it retains jurisdiction so long as that state, by its own determination, not another states determination, maintains a significant connection with the disputants in this case the father and the mother because she has not established residence in MT and is not sure she will remain there or until all disputants have moved away from that state. In contrast, the UCCJA allows jurisdiction to shift if the initial ground for taking jurisdiction ceases to exist. Thus, if a state takes jurisdiction over a child custody dispute because that state is the home state of the child, and the child subsequently establishes a new home state, jurisdiction can shift to the new home state, even if one parent remains in the child's original home state. The UCCJEA would not allow the jurisdiction to shift in this fashion, keeping it in the original home state so long as the parent remains there.

 

[UnbornChild]

Ok, I see what you're saying.

I'd still talk to the attorney about bringing it up. In order for the WA judge to issue an order for them before the child was born, she swore under oath (whether verbal or written in an affidavit) that the child was indeed conceived in WA. Now, she's trying to change her story to suit her needs. It could still go to her credibility I think.

As a sidenote: I'd ask your own OB/GYN or even a GP to calculate an estimated conception date based on the due date she gave in her latest court filings. This is to get an accurate medical professional's opinion and not just mine from fuzzy math and not knowing the actual EDD she listed. This wouldn't be admissable in court, but a quick phone call may could get you some ideas of when it actually occured based on what she said her due date was in her filing.

However, I still feel that the jurisdiction for the custody issue is going to be Montana. Like I said before, the child's home state is the one that makes the custody determination and the child is a resident of MT, has been since the day it was born, and has never lived anywhere else. The WA judge made an order for the 2 parents. A child can't have a home state until it's born so the WA judges ruling can not be for custody.

Do you happen to have the WA judges order handy to where you can type it in here verbatim? Not the petitions or anything, only the order that the judge signed. Perhaps that would help us better know exactly what it is he ruled on.

Okay, I had my son read this to me, so if anything sounds off, let me know and I will try to get them in my hands sometime this week:

II A motion of temporary order was presented to this court and the court finds reasonable cause to issue the order. It is order that:

RESTRAINING ORDER: Does not apply

TEMPORARY RELIEF: [Written in Judge’s hand]: The respodent or someone on her behalf will notify the petitioner within two hours of the birth of the child.

The petitioner shall not be permitted to be present at the birth of the parties’ child.

BOND OR SECURITY: Does not apply

OTHER: The parents shall cooperate for the purposes of naming their child. The child shall be given the last name of [father’s last name].
RESERVED

The petitioner shall be listed in the birth certificate of the parties’ child as the father.
RESERVED

If the paternity of the child is in dispute, genetic testing shall be done on the child within three months of the child’s birth.

The petitioner will pay for such testing but if the petitioner is determined to be the father of the child, reimbursement of costs shall be reserved.

[Written in Judge’s hand]: Father may have 1 hour of visitation with the child upon the birth, either at the hospital, at the mother’s home, or at a location proposed by the mother.

Day of his visitation is at his discretion. Subsequent visitation to be upon further order of the court.

 

[UnbornChild]

<<<Both WA and MT have accepted the UCCJEA however there are some aspects of it that must still be considered. The UCCJEA has a provision re jurisdiciton wherein the jurisdiciton stays in the state where the custody action is filed and the court has taken action as WA has. There is no custody action existing in MT, only the motion to chnage the venue of the existing WA custody case to MT prior to the judges rulings on paternity/custody/parenting plan. This petition in and of it's self acknowledges the WA currently has jurisdiction, since they are asking that it be moved. The paternity action filed/served before the child was born and both parents were residents and the child's home state according to WA statutes. The child's "home" state is 1 of 4 factors to be considered. The only reason the child is in MT is because the mother effectively abducted the child and left the jurisdiction after accepting service of the paternity action. The UCCJEA is meant to enforce and the PKPA.>>>

This is all very promising.

My apologies again if this has been asked and answered but what are the four factors to be considered?

 

[UnbornChild]

Personally, I think this is one of those issues where the judge decided to "push the envelope" a bit. Maybe even in the hope that mom would conceed WA's jurisdiction, which mom has not. I bet its even possible that written orders were never made. I could be completely wrong...its just a guess.

What do you mean by "...I bet its even possible that written orders were never made...." If it is that there were never orders, there were. In fact, I have typed them in another response. Is that what you meant or was there another meaning to your statement? (I never know around this place as it seems you all speak a totally different language than most of us!)

And to be very honest, we were all shocked that the judge allowed any of it since we were told that he most likely would not. In fact, he asked us to wait for our hearing until the end of the list. Our attorney told us that it was not a good sign since he would probably not allow the Wa court to have venue. Anyway, we were pleasantly surprised, but still surprised.

 

[rmet4nzkx]

Okay, I had my son read this to me, so if anything sounds off, let me know and I will try to get them in my hands sometime this week:

II A motion of temporary order was presented to this court and the court finds reasonable cause to issue the order. It is order that:

RESTRAINING ORDER: Does not apply

TEMPORARY RELIEF: [Written in Judge’s hand]: The respodent or someone on her behalf will notify the petitioner within two hours of the birth of the child.

The petitioner shall not be permitted to be present at the birth of the parties’ child.

BOND OR SECURITY: Does not apply

OTHER: The parents shall cooperate for the purposes of naming their child. The child shall be given the last name of [father’s last name].
RESERVED

The petitioner shall be listed in the birth certificate of the parties’ child as the father.
RESERVED

If the paternity of the child is in dispute, genetic testing shall be done on the child within three months of the child’s birth.

The petitioner will pay for such testing but if the petitioner is determined to be the father of the child, reimbursement of costs shall be reserved.

[Written in Judge’s hand]: Father may have 1 hour of visitation with the child upon the birth, either at the hospital, at the mother’s home, or at a location proposed by the mother.

Day of his visitation is at his discretion. Subsequent visitation to be upon further order of the court.

Well this is good it essentially established the paternity of the child and the beginings of what could be termed joint custody since the parties were to cooporate in the naming of the child and the father's last name to be given to the child and listed on the birth certificate, the subsequent custody and visitation orders are reserved pending the birth. This should answer the questions about what is to go on the birth certificate. Have they named the child and given your son's last name as ordered? The motion in Montana is not an appeal of the WA order, there is NO restraining order so he can and should communicate with mom in order to name the child he can do this by phone. There is a period of time even if your son acknowledges paternity as he has to confirm it with DNA. So the parents of this child are definately the subject WA jurisdiction for this custody action. Hoprfully at the next hearing some sort of visitation will be established.

 

[rmet4nzkx]

<<<Both WA and MT have accepted the UCCJEA however there are some aspects of it that must still be considered. The UCCJEA has a provision re jurisdiciton wherein the jurisdiciton stays in the state where the custody action is filed and the court has taken action as WA has. There is no custody action existing in MT, only the motion to chnage the venue of the existing WA custody case to MT prior to the judges rulings on paternity/custody/parenting plan. This petition in and of it's self acknowledges the WA currently has jurisdiction, since they are asking that it be moved. The paternity action filed/served before the child was born and both parents were residents and the child's home state according to WA statutes. The child's "home" state is 1 of 4 factors to be considered. The only reason the child is in MT is because the mother effectively abducted the child and left the jurisdiction after accepting service of the paternity action. The UCCJEA is meant to enforce and the PKPA.>>>

This is all very promising.

My apologies again if this has been asked and answered but what are the four factors to be considered?

In the UCCJA, there are four principles, or bases, for taking jurisdiction over a child custody dispute. These are:

* The child's home state;
* Significant connection between state and parties to a child custody dispute;
* Emergency jurisdiction when the child is present and the child's welfare is threatened; and,
* Presence of the child if there is no other state with another sound basis for taking jurisdiction.
The term taking jurisdiction simply means that a state's courts have a good reason for summoning the contestants to come before them to adjudicate the dispute no matter where they reside. If there is jurisdiction, the court's orders are valid and enforceable.