jurisdiction question

[challenges]

What is the name of your state (only U.S. law)? Illiniois and California

This is my first posting on this forum. The father and I have two children. I have sole physical and share joint legal custody with the father. The original case was filed in San Francisco. After a hearing I was granted the right to move with the children to Illinois (career reason). Father subsequently moved to Southern California. We have filed two modifications since the original stipulation and order and those were both handled in the San Francisco court.

My question is I want to modify our order since it needs updating and is not clear on some issues (son needs summer school and father says I lose my vacation time with the children if son goes to summer school). Is there any benefit to moving the case to Illinois? Can I do so?

Thanks.

 

[mistoffolees]

What is the name of your state (only U.S. law)? Illiniois and California

This is my first posting on this forum. The father and I have two children. I have sole physical and share joint legal custody with the father. The original case was filed in San Francisco. After a hearing I was granted the right to move with the children to Illinois (career reason). Father subsequently moved to Southern California. We have filed two modifications since the original stipulation and order and those were both handled in the San Francisco court.

My question is I want to modify our order since it needs updating and is not clear on some issues (son needs summer school and father says I lose my vacation time with the children if son goes to summer school). Is there any benefit to moving the case to Illinois? Can I do so?

Thanks.

Since Dad is still in CA, you would need CA's permission to transfer the case to IL - and if Dad objects, it probably won't happen.

Why do you lose summer vacation time if child goes to summer school? How does your court order read? Even if he's failing a subject and required to take summer school, there may be ways around that - such as taking the coursework online or something.

 

[challenges]

Since Dad is still in CA, you would need CA's permission to transfer the case to IL - and if Dad objects, it probably won't happen.

Why do you lose summer vacation time if child goes to summer school? How does your court order read? Even if he's failing a subject and required to take summer school, there may be ways around that - such as taking the coursework online or something.

Thanks for your response. Father objects because he wants to maintain 30% visitation (109 days/year). If son goes to summer school he needs to stay in IL for 2 additional weeks. Daughter could still go for visitation at the normal time.

The order states:
"Summer (June 11 – August 30 in 2008), Children to San Francisco (81-8 =73 days)* [. . . . . ]

This totals 109 days and maintains Father’s 30% timeshare with the children. Under no circumstances are the dates above to be modified unless agreed to by both parties.

*Mother is to have the children for 8 days in the summer. This time is to remain flexible once Mother gives Father 3 weeks notice and it does not conflict with a previously paid for vacation Father has planned. If Father’s Day falls during Mother’s 8 days, Mother agrees that the children can spend Father’s Day with their Father and that day will be made up the following day so that Mother maintains 8 full days. For future years Mother and Father agree to come to a mutually agreeable summer vacation schedule. Father and Mother agree that is very important for the children to spend time in the summer with both sets of relatives and agree to cooperate and work together in good faith to achieve this."

Father states he will not let son attend summer school (it's a transition course to help him adjust to a large high school - he has ADD) unless I give up my 8 days since he (father) would have to make the sacrifice of having that time wiht his son. Relatedly father has refused to use all his scheduled visitation time in IL claiming inconvenience and expense. I would love father to spend time with the children out here.

 

[Ohiogal]

Thanks for your response. Father objects because he wants to maintain 30% visitation (109 days/year). If son goes to summer school he needs to stay in IL for 2 additional weeks. Daughter could still go for visitation at the normal time.

The order states:
"Summer (June 11 – August 30 in 2008), Children to San Francisco (81-8 =73 days)* [. . . . . ]

This totals 109 days and maintains Father’s 30% timeshare with the children. Under no circumstances are the dates above to be modified unless agreed to by both parties.

*Mother is to have the children for 8 days in the summer. This time is to remain flexible once Mother gives Father 3 weeks notice and it does not conflict with a previously paid for vacation Father has planned. If Father’s Day falls during Mother’s 8 days, Mother agrees that the children can spend Father’s Day with their Father and that day will be made up the following day so that Mother maintains 8 full days. For future years Mother and Father agree to come to a mutually agreeable summer vacation schedule. Father and Mother agree that is very important for the children to spend time in the summer with both sets of relatives and agree to cooperate and work together in good faith to achieve this."

Father states he will not let son attend summer school (it's a transition course to help him adjust to a large high school - he has ADD) unless I give up my 8 days since he (father) would have to make the sacrifice of having that time wiht his son. Relatedly father has refused to use all his scheduled visitation time in IL claiming inconvenience and expense. I would love father to spend time with the children out here.

so summer school is NOT necessary but rather it is something you WANT the child to attend. Sorry but if you want child to attend an optional program, then it comes from YOUR time with the child. Hence dad is right.

 

[mistoffolees]

Thanks for your response. Father objects because he wants to maintain 30% visitation (109 days/year). If son goes to summer school he needs to stay in IL for 2 additional weeks. Daughter could still go for visitation at the normal time.

The order states:
"Summer (June 11 – August 30 in 2008), Children to San Francisco (81-8 =73 days)* [. . . . . ]

This totals 109 days and maintains Father’s 30% timeshare with the children. Under no circumstances are the dates above to be modified unless agreed to by both parties.

*Mother is to have the children for 8 days in the summer. This time is to remain flexible once Mother gives Father 3 weeks notice and it does not conflict with a previously paid for vacation Father has planned. If Father’s Day falls during Mother’s 8 days, Mother agrees that the children can spend Father’s Day with their Father and that day will be made up the following day so that Mother maintains 8 full days. For future years Mother and Father agree to come to a mutually agreeable summer vacation schedule. Father and Mother agree that is very important for the children to spend time in the summer with both sets of relatives and agree to cooperate and work together in good faith to achieve this."

Father states he will not let son attend summer school (it's a transition course to help him adjust to a large high school - he has ADD) unless I give up my 8 days since he (father) would have to make the sacrifice of having that time wiht his son. Relatedly father has refused to use all his scheduled visitation time in IL claiming inconvenience and expense. I would love father to spend time with the children out here.

The problem is that Dad's time is set in stone. You have no right to interfere and Dad has every right to object.

HOWEVER, in a case where it is clearly to the child's benefit, the court may overrule Dad.

You have a couple of options:

1. Go back to court to try to get an order for the child to be able to attend summer school. Could go either way.

2. Offer Dad some other incentive to go along - perhaps you have other days you can switch with him to make up for his lost days?

3. Or child misses the summer school program. While it would probably be helpful, it's not a requirement, so he might just have to miss it - and you would have to find some other way to help with the transition. I would definitely talk with the counselor at school and/or son's mental health professional. For some schools (like the one I went to), there's really no difference between middle school and high school - the buildings were even adjoining. For other schools, the difference is HUGE and might be scary for a kid with ADD. Get professional advice on how necessary it is.

 

[challenges]

The problem is that Dad's time is set in stone. You have no right to interfere and Dad has every right to object.

HOWEVER, in a case where it is clearly to the child's benefit, the court may overrule Dad.

You have a couple of options:

1. Go back to court to try to get an order for the child to be able to attend summer school. Could go either way.

2. Offer Dad some other incentive to go along - perhaps you have other days you can switch with him to make up for his lost days?

3. Or child misses the summer school program. While it would probably be helpful, it's not a requirement, so he might just have to miss it - and you would have to find some other way to help with the transition. I would definitely talk with the counselor at school and/or son's mental health professional. For some schools (like the one I went to), there's really no difference between middle school and high school - the buildings were even adjoining. For other schools, the difference is HUGE and might be scary for a kid with ADD. Get professional advice on how necessary it is.

Okay, I get that. Does it make any difference that father is not using his visitation out here (he's missed 4 trips out here). So he could easily keep his 109 days if didn't miss his scheduled visitation.

I am willing to give up the 8 days vacation with my son if it comes down to it because he really wants to go and because his counselor recommends it. How would this work with our daughter though? Do you think the way the order is written that I can still have my vacation time with her when I go out to CA?

 

[justalayman]

Unless you have something particularly designed for your 8 days, I would think the equitable solution would be dads stand on the matter.

You are asking him to lose a much greater percentage of his time than it would be for you. Additionally, you would be gaining that time the father would be losing. It's not like the child is going off to Europe where neither parent is with the child. He will be with you.

 

[challenges]

Unless you have something particularly designed for your 8 days, I would think the equitable solution would be dads stand on the matter.

You are asking him to lose a much greater percentage of his time than it would be for you. Additionally, you would be gaining that time the father would be losing. It's not like the child is going off to Europe where neither parent is with the child. He will be with you.

I see your point about dad losing more proportionally. The reason the summer 8 days are important to me is that that is the only time the kids can see their maternal extended family. If Dad would let the children see their extended family I would really appreciate it but he would rather have them in expensive summer camps (we split the cost on those). So, that is another reason I wanted to modify the existing order - to try and set up a right of first refusal. Is that something that ever works?

 

[mistoffolees]

Okay, I get that. Does it make any difference that father is not using his visitation out here (he's missed 4 trips out here). So he could easily keep his 109 days if didn't miss his scheduled visitation.

No, it doesn't matter in the least.

Dad is entitled to his summer time - even if he doesn't use all the time allotted to him.

I am willing to give up the 8 days vacation with my son if it comes down to it because he really wants to go and because his counselor recommends it. How would this work with our daughter though? Do you think the way the order is written that I can still have my vacation time with her when I go out to CA?

I think that you giving up your 8 days is by far the best solution.

I don't see any reason why you shouldn't be able to visit with the daughter per the court order.

 

[Tex78704]

Depending upon how long the children have been in IL, and given dad now lives in Southern Cal, it is conceivable the San Franciso court just might relinquish jurisdiction to IL. On the other hand, it might change venue to a court closest to dad in Southern Cal. The children do spend a lot of time in CA, so changing jurisdiction in this case would be more of a challenge if dad contests it.

But the issues with school and ADD are such that CA is arguably an 'inconvenient forum' to properly address these, given counselor and other witness testimony may be required, and an IL judge would be more familiar with the child's current environment. Talk to an attorney with experience in UCCJEA and interstate custody issues, who can file in IL and start the ball rolling in both courts if this is the recommended course of action.

But either way, I concur that dad is entitled to his time. That said, a review of the situation to determine what is most equitable and in the best interests of the child may be in order.

 

[Ohiogal]

I see your point about dad losing more proportionally. The reason the summer 8 days are important to me is that that is the only time the kids can see their maternal extended family. If Dad would let the children see their extended family I would really appreciate it but he would rather have them in expensive summer camps (we split the cost on those). So, that is another reason I wanted to modify the existing order - to try and set up a right of first refusal. Is that something that ever works?

So you don't want your children in summer camps but you want them attending an OPTIONAL summer educational program and causing dad to miss time? Why can't YOUR family spend time with the children during the rest of the year?

 

[challenges]

So you don't want your children in summer camps but you want them attending an OPTIONAL summer educational program and causing dad to miss time? Why can't YOUR family spend time with the children during the rest of the year?

The summer camps they spend during dad's time are so he can work. They are fun but not educational. Our son is struggling in school and has an IEP, a 2xweek tutor, a psychiatrist and a family therapist. So, yes it's an optional summer school but it provides one high school credit and is strongly recommended by the IEP team. The reason my family can't see the children during my time is that they all live in CA (father has now moved within one mile of them). My family has reached out to the father but he rejects them.

I know I chose this man to have children with and I can't make things be the way I want but I do so much of the heavy lifting with respect to childcare (my son needs extraordinary amounts of help) that I would like his dad to be more involved (this is why I wish he wouldn't cancel all his trips out here). I think it would be good for my son to have some downtime with me where I'm not constantly taking him to one apt or another or supervising his homework, etc. That's not really a legal issue I understand. Just thought I would share my thinking on this.

 

[CJane]

So, you've been back for multiple modifications since moving to IL and the order still says that you have to send the kids to SF when Dad lives in southern CA?

Why?

Dad's right on this one. If you want the child to attend a summer enrichment program, then he needs to do so during "your" time. If I want to send my kids to something in the summer, I either need to make sure it's on my time or make sure Dad agrees to losing a little of his time too.

That's just parenting. We never get to spend as much time with our kids as we'd like, even in intact families.

 

[stealth2]

I gave up one of my two weeks of summer time with my son for years so he could go to Scout camp with his troop.

 

[challenges]

"So, you've been back for multiple modifications since moving to IL and the order still says that you have to send the kids to SF when Dad lives in southern CA?

Why?"

That's one reason I wanted to get another modification - the orders all refer to exchanges in San Francisco and none of us even live there anymore. So, it's pretty out of date. The original order (by stipulation) was in 2005. The moveway order was in 2006. Dad filed a modification in 2008 and we came to an agreement on that (fewer visits for him out here, more time for the children in CA). I actually do not want to rock the boat and will just accept the 8 days loss of vacation time since the school is so important.

I appreciate everyone's input and may be back with more questions - "I do love my children more than I hate my ex." I don't know which one of you wrote that but I try and live by it.