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Father's Rights - Unborn Child

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What is the name of your state? WA

rmet said:
Hep-A is spread by exposure to human waste products, plummers work around that sometimes. You are right, eventually their hands will be difficult to keep clean. I ahve seen plummers working on a sewer line and touch the pipes, pull stuff from the pipes and proceed to touch doorknobs, handles,

You don't want to spread anything or give anyone an excuse.

As to the GAL, while WA has jurisdiction, then a request to appoint a GAL in WA is appropriate, if an or when Jurisdiction goes to MT, then and only then ask for GAL in MT, to do so before essentially ceeds jurisdiction. Also it is possible since the case already is filed jurisdiction wouldn't change until after a GAL was appointed, the judge may even appoint one..

Your son can do as he pleases re the time on Sundays, he can also attend church with the child if he choses I am only trying to suggest things to optimize his time and reduce stress..
I hope this is okay. I copied the last message from my closed post and put it in this one.

I had a nice chat with the attorney and he seems to be back on board. I will definitely watch him closer this time. Father now has a new hearing on 9/30 to request temp visitation and a GAL be appointed.

He is only asking for temporary visitation until a WA GAL can put something together. The temporary plan only goes through 7 months. Is this enough time for a GAL to finish up and the courts to make their decision? Of course, I know anything is possible but, in theory, should this be enough time? I'll have to watch it closely to be sure we don't run out of time, I guess? The attorney said just what you (rmet) said: "To request a GAL in MT would imply ceding jurisdiction." So we're requesting one here in WA. (How'd you get so smart, rmet?)

Father was finally served the mystery papers from MT. They are basically asking to move jurisdiction. Mother is requesting that the birth certificate include the father's name and that he pay support. (That's fine)

Mother wants the baby to have her last name. I have heard that this is not an uncommon request, but how does the court typically look at a request like this? I personally feel it is ridiculous, but that's just one person. I would really like to know any of your experiences on this one. It is bothering us a lot (especially the father) What are the general arguments behind using the mother's last name rather than the father's and how often is the request granted? And under what logic??!!

As usual, thank you for your advice. It has helped us so very much.
 
Last edited:


LdiJ

Senior Member
UnbornChild said:
What is the name of your state? WA



I hope this is okay. I copied the last message from my closed post and put it in this one.

I had a nice chat with the attorney and he seems to be back on board. I will definitely watch him closer this time. Father now has a new hearing on 9/30 to request temp visitation and a GAL be appointed.

He is only asking for temporary visitation until a WA GAL can put something together. The temporary plan only goes through 7 months. Is this enough time for a GAL to finish up and the courts to make their decision? Of course, I know anything is possible but, in theory, should this be enough time? I'll have to watch it closely to be sure we don't run out of time, I guess? The attorney said just what you (rmet) said: "To request a GAL in MT would imply ceding jurisdiction." So we're requesting one here in WA. (How'd you get so smart, rmet?)

Father was finally served the mystery papers from MT. They are basically asking to move jurisdiction. Mother is requesting that the birth certificate include the father's name and that he pay support. (That's fine)

Mother wants the baby to have her last name. I have heard that this is not an uncommon request, but how does the court typically look at a request like this? I personally feel it is ridiculous, but that's just one person. I would really like to know any of your experiences on this one. It is bothering us a lot (especially the father) What are the general arguments behind using the mother's last name rather than the father's and how often is the request granted? And under what logic??!!

As usual, thank you for your advice. It has helped us so very much.
You and Rmet misunderstood what I was talking about, about having a GAL in Montana. I wasn't suggesting that you try to keep jurisdiction in WA, but have a Montana GAL. The direction my mind was going was that maybe it wouldn't be a bad thing for Montana to have jurisdiction, if the family was already known there to be "less than mainstream". That it could possibly give your son a greater advantage than home court advantage. Again, that would be assuming that people in the court system would have already formed a somewhat negative opinion of the family.

As far as the baby's last name is concerned. The baby probably already has the mother's last name. Therefore it isn't a question of which last name the baby will have, its a question of whether or not the judge will order the baby's last name to be changed to dad's.

It used to be fairly automatic that a child would be given the father's last name if that is what the father wanted. Its not automatic at all anymore. More and more judges are declining to change a child's last name, if their current last name is the same as the parent with whom they will primarily be residing. However, there is one compromise that judges REALLY like, and that is to hyphenate the child's last name....ie Smith-Jones. I have never seen a judge decline to order that kind of change (although I am sure some have). So your son should consider that.

The temporary schedule that you are proposing may not fly as a temporary schedule. Generally, temporary schedules are not as generous as long term schedules, that is of course not always the case....but it tends to be the case. I am almost certain that a judge wouldn't order a schedule that contained any kind of 50/50 time without having a full report from a GAL recommending that....particularly for an infant.

Habitually...a temporary schedule in a case like your son's would involve your son visiting in mom's community until a final decision was reached by the courts. Again, that doesn't mean that something else couldn't happen in your son's case....but you should be prepared.

Nothing at all though will be decided or ordered until jurisdiction is resolved.
Did the paperwork request that the Montana courts take jurisdiction (in other words, was it filed with the Montana courts?)...or was it a request to the WA courts to relinquish jurisdiction to Montana? That makes a difference in what might happen in the short term.
 
LdiJ said:
You and Rmet misunderstood what I was talking about, about having a GAL in Montana. I wasn't suggesting that you try to keep jurisdiction in WA, but have a Montana GAL. The direction my mind was going was that maybe it wouldn't be a bad thing for Montana to have jurisdiction, if the family was already known there to be "less than mainstream". That it could possibly give your son a greater advantage than home court advantage. Again, that would be assuming that people in the court system would have already formed a somewhat negative opinion of the family.

As far as the baby's last name is concerned. The baby probably already has the mother's last name. Therefore it isn't a question of which last name the baby will have, its a question of whether or not the judge will order the baby's last name to be changed to dad's.

It used to be fairly automatic that a child would be given the father's last name if that is what the father wanted. Its not automatic at all anymore. More and more judges are declining to change a child's last name, if their current last name is the same as the parent with whom they will primarily be residing. However, there is one compromise that judges REALLY like, and that is to hyphenate the child's last name....ie Smith-Jones. I have never seen a judge decline to order that kind of change (although I am sure some have). So your son should consider that.

The temporary schedule that you are proposing may not fly as a temporary schedule. Generally, temporary schedules are not as generous as long term schedules, that is of course not always the case....but it tends to be the case. I am almost certain that a judge wouldn't order a schedule that contained any kind of 50/50 time without having a full report from a GAL recommending that....particularly for an infant.

Habitually...a temporary schedule in a case like your son's would involve your son visiting in mom's community until a final decision was reached by the courts. Again, that doesn't mean that something else couldn't happen in your son's case....but you should be prepared.

Nothing at all though will be decided or ordered until jurisdiction is resolved.
Did the paperwork request that the Montana courts take jurisdiction (in other words, was it filed with the Montana courts?)...or was it a request to the WA courts to relinquish jurisdiction to Montana? That makes a difference in what might happen in the short term.
Once again, WOW!! I can't believe the wisdom in this forum. Thank you. Thank you.

The hyphenated last name is a great compromise. How is it usually done? If mother is Smith and father is Jones, does it go Smtih-Jones or Jones-Smtih. Not important, I know, just curious.

Nothing will be decided until jurisdiction is resolved??!! Does that mean father may not be able to see baby at all until then? If that is the case, could the WA judge, since he allowed father to visit at birth, maybe allow visits until next hearing?

I don't know that the family is so far-out that they are known as such within the court system, but I do agree that perhaps a MT GAL would be more "up" on the community weirdos. If this goes too far, ceding jurisdiction may be easier (and less expensive!!)

I have more info / questions:

Father's attorney explained that he didn't want to go past 7 months on the temporary visitation schedule afterall since they would probably hold things up by disputing father's requests in the, let's say, 12th month. Just something for them to attack, he felt, so he stopped at 7 months. I see his logic.

Father's attorney doesn't have anything about mother paying for 1/2 of expenses to visit. Could this be that he is afraid they will dispute this as well so he left it out just to hurry the visitation? (Father has stated that this is the MOST important issue at the time) Since I have a financial interest in this, I would like some help on the travel costs! I will not go against what the father or his attorney wants, but I want to be able to speak intelligently when the matter is discussed on Monday. Your thoughts?

I have been reading a lot on parenting plans, joint custody, etc. I notice that father often requests contact once a week regarding the child's well-being. Email would be best in this case. Is that reasonable at this point of time? (Before the GAL is involved) I mean, heck, the baby was born 9/2 and father has heard nothing about the baby's health, etc.. It is very important for father to at least hear once a week how baby is doing. Your thoughts?

Thanks!!
 

rmet4nzkx

Senior Member
Thank you for starting a new thread, sorry that I didn't notice it sooner today :eek:
I am going to reply to these posts but need to go out for a while and so will do later. Remember I am addressing the case insofar as the facts in evidence, not all the other possibilities unless there is a need to address them. I respond with reference to the appropriate state statutes and will give rational and compare as needed, but I will not go into expounding on irrelevent possibilities at this time, focus on the facts in evidence.
 
rmet4nzkx said:
Thank you for starting a new thread, sorry that I didn't notice it sooner today :eek:
I am going to reply to these posts but need to go out for a while and so will do later. Remember I am addressing the case insofar as the facts in evidence, not all the other possibilities unless there is a need to address them. I respond with reference to the appropriate state statutes and will give rational and compare as needed, but I will not go into expounding on irrelevent possibilities at this time, focus on the facts in evidence.
Yes, and that has kept me on track. Some the questions in my last post are more out of curiousity (and perhaps concern) but I am definitely heeding your advice to stick with the current facts.

I look forward to your later post(s).
 

LdiJ

Senior Member
UnbornChild said:
Once again, WOW!! I can't believe the wisdom in this forum. Thank you. Thank you.

The hyphenated last name is a great compromise. How is it usually done? If mother is Smith and father is Jones, does it go Smtih-Jones or Jones-Smtih. Not important, I know, just curious.
I don't think that there is any particular "standard" on that.

Nothing will be decided until jurisdiction is resolved??!! Does that mean father may not be able to see baby at all until then? If that is the case, could the WA judge, since he allowed father to visit at birth, maybe allow visits until next hearing?
This is kind of complicated to explain. For any WA order to truly be enforceable in Montana it has to be domesticated by the Montana courts. Lets say that she did file the papers in Montana....that more or less makes any WA orders temporarily unenforceable because the matter is before the Montana court.....because the Montana judge isn't going to domesticate any WA orders until he/she makes a decision regarding jurisdiction.

I don't know that the family is so far-out that they are known as such within the court system, but I do agree that perhaps a MT GAL would be more "up" on the community weirdos. If this goes too far, ceding jurisdiction may be easier (and less expensive!!)
That is the point that I have been making all along.

I have more info / questions:

Father's attorney explained that he didn't want to go past 7 months on the temporary visitation schedule afterall since they would probably hold things up by disputing father's requests in the, let's say, 12th month. Just something for them to attack, he felt, so he stopped at 7 months. I see his logic.
That makes sense....I myself felt the same way.

Father's attorney doesn't have anything about mother paying for 1/2 of expenses to visit. Could this be that he is afraid they will dispute this as well so he left it out just to hurry the visitation? (Father has stated that this is the MOST important issue at the time) Since I have a financial interest in this, I would like some help on the travel costs! I will not go against what the father or his attorney wants, but I want to be able to speak intelligently when the matter is discussed on Monday. Your thoughts?
I think the attorney is being wise at this point. Plus, please realize that she definitely will not be ordered to cover any of YOUR costs to visit. She may eventually be required to cover some of your son's...or in the future the child's, but definitely not any of yours.

I have been reading a lot on parenting plans, joint custody, etc. I notice that father often requests contact once a week regarding the child's well-being. Email would be best in this case. Is that reasonable at this point of time? (Before the GAL is involved) I mean, heck, the baby was born 9/2 and father has heard nothing about the baby's health, etc.. It is very important for father to at least hear once a week how baby is doing. Your thoughts?
Its possible....but if paternity needs to be established it may not happen right away. Many unwed fathers go months before recieving any information regarding newborns.
 
LdiJ said:
This is kind of complicated to explain. For any WA order to truly be enforceable in Montana it has to be domesticated by the Montana courts. Lets say that she did file the papers in Montana....that more or less makes any WA orders temporarily unenforceable because the matter is before the Montana court.....because the Montana judge isn't going to domesticate any WA orders until he/she makes a decision regarding jurisdiction.
So, are you saying that it is possible that, if a WA judge orders father to visit before jurisdiction is decided, the MT judge can prevent the visitation? YUCK!!

By the way, yes, the papers were filed in MT. There is something in there that asked for the WA courts to "confer" with MT court. I will have the papers later today and let you know.




LdiJ said:
That is the point that I have been making all along.
I know and the lightbulb is flickering in my head.


LdiJ said:
I think the attorney is being wise at this point. Plus, please realize that she definitely will not be ordered to cover any of YOUR costs to visit. She may eventually be required to cover some of your son's...or in the future the child's, but definitely not any of yours.
No, I am not suggesting that ANYONE pay MY costs. I can cover MY own costs. What I am saying is that I am helping to pay for a lot (or most) of this so if he gets some sort of relief on his costs, it will ultimately affect me. That's all.

Why do you think the attorney is wise to keep from asking, at this point, for help with costs?


LdiJ said:
Iits possible....but if paternity needs to be established it may not happen right away. Many unwed fathers go months before recieving any information regarding newborns.
That is really too bad. There ARE some good people out there that will make a positive impact on THEIR children.

Thanks for your input. It really gets me thinking!
 

LdiJ

Senior Member
UnbornChild said:
So, are you saying that it is possible that, if a WA judge orders father to visit before jurisdiction is decided, the MT judge can prevent the visitation? YUCK!!

By the way, yes, the papers were filed in MT. There is something in there that asked for the WA courts to "confer" with MT court. I will have the papers later today and let you know.
Its not so much that the Montana judge would prevent the visitation, its that mom could refuse to obey the WA judge's orders and the Montana judge wouldn't step in and enforce them until he/she made a decision on jurisdiction.
WA has no power to enforce its orders in another state. It needs the help/cooperation of that state to enforce the orders.

Its normal in a case of disputed jurisdiction for the two judges to confer. Its fairly common for them to come to a mutual decision regarding which state will have jurisdiction. However, sometimes they don't agree and both states claim jurisdiction. That makes things really sticky. My honest guess is that the WA judge will cede jursidiction to Montana, since Montana is the state of the child's legal residency. If not, I honestly think that the Montana judge will take jurisdiction anyway. Rmet disagrees on that issue, she thinks that Montana will cede jurisdiction to WA. Only time will tell which of us is right.

Just to give you an example...I was involved in a case between IN and LA (friend of mine). Both states claimed jurisdiction. As a result, the IN judge wouldn't give the party (in this case a grandparent) any unsupervised visitation outside of Indiana. Why? Because LA was claiming jurisdiction therefore LA wouldn't have enforced IN's orders.

Why do you think the attorney is wise to keep from asking, at this point, for help with costs?
Because its going to be a heavily disputed point...and any time you have a heavily disputed point it slows things down. Right now the most important thing is that your son gets to see the child as soon as possible. You don't want that delayed while everyone fights over travel costs.....just like you don't want that delayed while everyone fights over jursidiction. (which is another reason why I think the way that I do about jurisdiction)

Its normally wise not to ask for anything in the temporary orders that a judge would feel necessary to hold an evidentiary hearing to decide. You want the temporary orders to be something so non-debatible that the judge will just sign off on them.
 
LdiJ said:
.....its that mom could refuse to obey the WA judge's orders and the Montana judge wouldn't step in and enforce them......
YUCK!!

LdiJ said:
.....I honestly think that the Montana judge will take jurisdiction anyway.......
And the MT judge has the right to take it away? If so, why?


LdiJ said:
Right now the most important thing is that your son gets to see the child as soon as possible. You don't want that delayed while everyone fights over travel costs............
Got it. Thanks

LdiJ said:
Its normally wise not to ask for anything in the temporary orders that a judge would feel necessary to hold an evidentiary hearing to decide. You want the temporary orders to be something so non-debatible that the judge will just sign off on them.
Again, got it. All makes sense. Thanks again.
 

LdiJ

Senior Member
UnbornChild said:
YUCK!!

And the MT judge has the right to take it away? If so why?
As I explained before. The state of Montana has the right to take jurisdiction in regards to one of its residents. Particularly one of its residents who has never been a legal resident in another state. In this case, we are talking about the child, not mom. It would be totally proper for Montana to take jurisdiction under the UCCJEA.

Although Rmet and I don't agree on whether or not it was proper for the WA judge to have taken jurisdiction don't take that to mean that there can't be a basis for WA to also validly take jurisdiction. There can be situations where more than one state could validly claim jurisdiction. My opinion is that this is not one of those situations...but its just my opinion.

Montana is the only home state the child has ever had. The Montana judge really has all the "power" here because the child is physically in Montana. That is why I think that if the Montana judge wants jurisdiction, that WA is likely to cede it. The WA judge will know that his orders can't be enforced in Montana.

If the child had been born in WA, and mom moved after the birth to Montana, it would be clear cut. WA would have jurisdiction and no judge in Montana would take jurisdiction unless there were seriously unusual circumstances indicating that justice couldn't be served in WA.

It was fairly unusual that the WA judge decided to take jurisdiction or make orders regarding a child that was not yet born.
 

LdiJ

Senior Member
I am going to add something here that may help you understand the concept of jurisdiction....because its a complicated one.

Each state in the US is "sovereign" in that it is almost its own country in some ways. We have a national constitution that gives the federal government authority in certain areas, and then all other areas are "reserved for the states". Family law is one of those areas.

However, because the federal government saw the need for child support and child custody laws to be enforceable across state lines, the federal government put together proposed legislation (first the UCCJA which later morphed into the UCCJEA). The federal government talked the states into adopting this legislation into their own statutes. However, where the UCCJA or the UCCJEA conflicts with the states own laws, a judge has the power to ignore the UCCJA or UCCJEA and rule based on state law.

Prior to the UCCJA or UCCJEA it wasn't unusual for one parent to be granted custody in one state, and another parent be granted custody in another state....and a major battle to ensue with neither state recognizing the orders of the other. That still happens....but now its rare because of the UCCJA and the UCCJEA.

Imagine if mom had moved to Mexico instead of Montana and the child had been born there. Would a Mexican judge be likely to enforce the orders of a WA judge in that case? Absolutely no, because there would be no legal basis for that. To some extent it was like that here before the UCCJA and the UCCJEA were adopted by the states.
 

rmet4nzkx

Senior Member
To answer some of the questions in the most direct manner I have provided links and partial post of text, please read the entire section. RE MONTANA

from http://www.peak.org/~jedwards/paternity.html
Whose Last Name Does the Child Have?..... states that..."In Montana, 3 Supreme Court decisions hold that whether the parents were married or not, the child should have the surname of the natural father, despite the fact that the mother may have custody, despite the fact that the father is delinquent in support, and despite the fact that the father has not visited the child."

Interesting on the issue of jurisdiction and place of conception. :D
MONTANA

Montana enacted its administrative paternity process legislation
in 1989 to streamline child support enforcement case processing
that was typically difficult and time-consuming. The major
stumbling block imposed in contested cases by the judicial
process was the requirement that absolute probable cause be
established in the district court before a genetic testing order
could be granted. With the extensive evidentiary requirements,
the many delays available to an uncooperative alleged father, and
the heavy backlogs in many Montana courts, most contested cases
waited more than a year for progress.

JURISDICTION AND NOTICE

Under the 1989 revisions, codified at Montana Code Annotated
40-5-231-40-5-237, personal jurisdiction is established in the
Department of Social and Rehabilitation Services (DSRS) over any
person who has had sexual intercourse in Montana that has
resulted in the birth of a child who is the subject of a
paternity proceeding.
Personal jurisdiction may be acquired
either by personal service or by service of notice by certified
mail. If the child or either parent resides in Montana, any
hearing may be held in the county where the child resides, either
parent resides, or the DSRS or any of its regional offices is
located. The alleged father may be served an Administrative
Notice of Paternity Determination based upon the sworn statement
of the mother or evidence of a presumption under State law or any
other reasonable cause to believe the alleged father is the
child's natural father.

RESPONSES TO NOTICE

After service of the administrative notice, the alleged father
has three alternatives courses of action.

þ Default - If the alleged father fails to respond to the
notice, such default is taken as an admission of
paternity and an administrative order is rendered by
the administrative hearing officer. The order takes
effect within 10 days unless good cause for failure to
appear is alleged. Upon timely request, and for good
cause shown, a default judgment can be set aside.
Default judgments are not taken in cases involving
multiple alleged fathers, unless all other alleged
fathers have been excluded by genetic blood testing.

þ Acknowledgment - Based on a written acknowledgment of
paternity from an adult or minor alleged father, the
administrative hearing officer enters an order
establishing paternity.

þ Denial - If the alleged father denies paternity in
response to the notice, an administrative hearing is
scheduled. During the hearing, which is usually
conducted by telephone, the hearing officer determines
if a reasonable probability exists that the alleged
father had sexual intercourse with the mother during
the probable period of conception or if any legal
presumption of paternity exists under the circumstances
of the particular case. If so, an administrative
subpoena is issued ordering genetic testing. The Child
Support Enforcement (CSE) agency can apply to the
district court, if necessary, to have its order
enforced. If the alleged father fails to appear for
blood tests, the default is taken in the same fashion
as if he had not made timely response to the initial
service.

GENETIC TESTING RESULTS

If the results of the genetic tests reflect a 95 percent or
higher probability that the alleged father is the natural father
of the child, a rebuttable presumption of paternity is created.
With the consent of the newly presumed father, the hearing
officer may enter an order establishing paternity. If the
probability of paternity is less than 95 percent, but the alleged
father is not excluded by the tests, the test results are weighed
along with other evidence of paternity.

Appeal of final administrative orders may be made on the father's
initiative to the district court. However, if the results of
genetic testing do not exclude the alleged father but he
continues to deny paternity prior to the entry of an
administrative order, he is served written notice and the case is
referred by the CSE agency to the district court.

Once the matter is referred to district court, expert testimony
on the genetic testing in the form of a certified report is
admissible without further testimony, as is an affidavit
documenting the chain of custody of the blood specimens. Genetic
exclusion is considered conclusive evidence of non-paternity, and
no evidence is admissible concerning sexual intercourse of the
mother with any man already excluded by the genetic testing.

If an alleged father objects to the procedures for or the results
of a paternity blood test, he must file a written objection with
the court within 20 days after the service of the notice of the
referral to the district court of the administrative
determination. (The Omnibus Budget Reconciliation Act of 1993
requires States to have laws under which objections to genetic
test results must be made in writing within a specified number of
days prior to the hearing, not a specified number of days after
notice.) The court must order an additional blood test if a
written objection is filed or at the request of the CSE agency.
An additional test must be performed by the same or another
expert who is qualified in paternity blood testing. Failure of
the alleged father to make a timely challenge is considered a
waiver of any defense to the test results or test procedures,
including the chain of custody. In any hearing before the court
or at trial, testimony relating to sexual intercourse of the
mother with any person who has been excluded from consideration
as a possible father of the child involved by the results of a
paternity blood test is inadmissible in evidence. When a
paternity blood test excludes an alleged father from possible
paternity, the test is conclusive evidence of nonpaternity of the
alleged father for all purposes in district court.

The CSE agency appears in the court proceeding only with regard
to the issue of paternity. No other issue--custody, visitation,
or other--may be joined. Since Montana's law creates a
rebuttable presumption that it is in the child's best interest to
legally establish paternity, the
court may not normally appoint a guardian ad litem. Furthermore,
neither the mother nor the child are necessary parties to the
action although they may testify as witnesses. The CSE agency is
not liable for attorney fees, including those for indigent
alleged fathers, or for the cost of a guardian ad litem unless
frivolousness or bad faith is proven.

FILING ADMINISTRATIVE ORDERS

An administrative order of the DSRS declaring the paternity of a
child, docketed with the court, establishes the legal existence
of the parent and child relationship for all purposes and confers
or imposes all parental rights, privileges, duties, and
obligations. Upon request of the mother or father of the child,
DSRS must file a copy of its order with the department of health
and environmental sciences, which must prepare a substitute
certificate of birth, if necessary, consistent with the
administrative order.

SETTING ASIDE ADMINISTRATIVE ORDERS

Except for an order based on a voluntary acknowledgment of
paternity, the DSRS may set aside an administrative order
establishing the paternity of a child upon application of any
affected party and upon a showing of any of the grounds and
within the timeframes provided in Rule 60(b) of the Montana Rules
of Civil Procedure. This rule specifies that the court may
relieve a party or his legal representative from a final order,
judgment, or proceeding based upon (1) mistake, inadvertence,
surprise, or excusable neglect; (2) newly-discovered evidence
which by due diligence could not have ben discovered in time to
move for a new trial; (3) fraud, misrepresentation, or other
misconduct of an adverse party; (4) the judgment is void; (5) the
judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise
vacated, or it is no longer equitable that the judgment have
prospective application; or (6) any other reason justifying
relief. The timeframe for the first three bases is 60 days from
the entry of the judgment.

For additional information, please contact Gwendolyn Kloeber at
(406) 444-4614
 

rmet4nzkx

Senior Member
LdiJ said:
I am going to add something here that may help you understand the concept of jurisdiction....because its a complicated one.

Each state in the US is "sovereign" in that it is almost its own country in some ways. We have a national constitution that gives the federal government authority in certain areas, and then all other areas are "reserved for the states". Family law is one of those areas.

However, because the federal government saw the need for child support and child custody laws to be enforceable across state lines, the federal government put together proposed legislation (first the UCCJA which later morphed into the UCCJEA). The federal government talked the states into adopting this legislation into their own statutes. However, where the UCCJA or the UCCJEA conflicts with the states own laws, a judge has the power to ignore the UCCJA or UCCJEA and rule based on state law.

Prior to the UCCJA or UCCJEA it wasn't unusual for one parent to be granted custody in one state, and another parent be granted custody in another state....and a major battle to ensue with neither state recognizing the orders of the other. That still happens....but now its rare because of the UCCJA and the UCCJEA.

Imagine if mom had moved to Mexico instead of Montana and the child had been born there. Would a Mexican judge be likely to enforce the orders of a WA judge in that case? Absolutely no, because there would be no legal basis for that. To some extent it was like that here before the UCCJA and the UCCJEA were adopted by the states.
Uniform Parentage Act and WA state.
If OP son filed a paternity suit in WA this is the form which includes acknowledgement of paternity, WA state law allows for paternity to be established 3 different ways, as was noted in the article from the NORTHWEST WOMEN’S LAW CENTER. OP son and mother of child have already met the elements required under the filing which includes the fact that jurisdiction was established per the RCW cited below, the action was filed against a WA resident who then moved in the last days of the pregnancy out of state. The WA statutes includes the language as do MT statutes re the residence at time of conception cited in the previous post.
http://www.courts.wa.gov/forms/index.cfm?fa=forms.contribute&formID=34

Unmarried Parents – with Paternity Acknowledgment - Establishing Residential Schedule/Child Support

An acknowledged father or mother may bring this action to establish a residential schedule/parenting plan or child support order two years or more after the Acknowledgment of Paternity they signed was filed with the Washington State Registrar of Vital Statistics. Either parent may also bring this action more that 60 days but less than two years after the acknowledgment was filed if the petitioning party specifically states (alleges) certain facts that are in paragraph 1.4 of the petition.
Petition is Dismissed and a Challenge to Acknowledgment of Paternity or Denial of Paternity is Filed

If the petition is filed less than two years after the Acknowledgment of Paternity or Denial of Paternity was filed and the allegations in paragraph 1.4 of the petition are disputed, a responding party may ask the court to dismiss the petition, and file a petition to challenge the Acknowledgment of Paternity or Denial of Paternity. The court may also dismiss the petition and direct one of the parties to file a petition to challenge the Acknowledgment of Paternity or Denial of Paternity. If the petition is dismissed and a petition to challenge is filed, use the forms listed below under the heading "Parentage (Unmarried Parents) - When the Acknowledged Father or the Mother wants to Challenge the Acknowledgment of Paternity" or "Parentage (Unmarried Parents) - When the Presumed Father wants to Challenge the Denial of Paternity."

Note: Additional documents may be required by local county superior court rules.
http://www.leg.wa.gov/rcw/index.cfm?fuseaction=title&title=26
Title 26 RCW
DOMESTIC RELATIONS
http://www.leg.wa.gov/RCW/index.cfm?fuseaction=chapterdigest&chapter=26.26

Jurisdiction
http://www.leg.wa.gov/RCW/index.cfm?fuseaction=chapterdigest&chapter=26.27
RCW 26.27.201
Initial child custody jurisdiction.

(1) Except as otherwise provided in RCW 26.27.231, a court of this state has jurisdiction to make an initial child custody determination only if:

(a) This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(b) A court of another state does not have jurisdiction under (a) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under RCW 26.27.261 or 26.27.271, and:

(i) The child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

(ii) Substantial evidence is available in this state concerning the child's care, protection, training, and personal relationships;

(c) All courts having jurisdiction under (a) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under RCW 26.27.261 or 26.27.271; or

(d) No court of any other state would have jurisdiction under the criteria specified in (a), (b), or (c) of this subsection.

(2) Subsection (1) of this section is the exclusive jurisdictional basis for making a child custody determination by a court of this state.

(3) Physical presence of, or personal jurisdiction over, a party or a child is not necessary or sufficient to make a child custody determination.

[2001 c 65 § 201.]

Remember WA state recognized the child legally as a person and resident at quickening.
 

LdiJ

Senior Member
None of the information in those two posts prohibits Montana from taking jurisdiction of this case.....either under Montana law or the UCCJEA.

Lets just admit that you and I have differing opinions of what is likely to happen.....and admit that dad should be prepared for either of us to be correct.

Again though, my main opinion is that dad should do whatever is necessary to establish regular contact with his child as rapidly as possible.
 

rmet4nzkx

Senior Member
LdiJ said:
None of the information in those two posts prohibits Montana from taking jurisdiction of this case.....either under Montana law or the UCCJEA.

Lets just admit that you and I have differing opinions of what is likely to happen.....and admit that dad should be prepared for either of us to be correct.

Again though, my main opinion is that dad should do whatever is necessary to establish regular contact with his child as rapidly as possible.
Insofar as the statutes in both states the weight is on WA for reason already mentioned.

The most rapid way to establish visitation is in WA where the next step is the hearing on 9-30-5 to establish tempoary visitation and parenting plans and appoint the GAL. Where as in MT the entire process would have to start from square 1, since MT does not have personal jurisdiction of any of the parties or the child and no reason to seek jurisdiciton as the paternity and custody process has already started in WA, MT will act within the full faith and credit clause of the US constitution. Mom would delay and OP son is likely not to see son until everything is setled in perhaps a year if jurisdiction were ceeded to MT. OP son would have to get another attorney in MT and start all over again.
 
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