Receiving conflicting advice

[DNA2]

What is the name of your state (only U.S. law)? I'm in New York but original custody order was from California.

I was divorced in 2006. I was living in Los Angeles county California and I made arrangements with my ex that I would relocate to New York because I was getting remarried and expecting a new baby. We had a 10 year old daughter and he and I verbally agreed she would finish out the school year (5th grade) with him in California and then move with me to New York. At the end of the year, days before she was supposed to move out to New york, he filed for custody. It happens. My daughter was 10 and wanted to stay at her school with her friends. In the end, I flew to California where we went through mediation. I agreed to joint custody where she had court ordered visits and would be with her dad during the school year and with me on breaks and in the summer. The custody orders specified she would remain at her school until 8th grade.

During 7th grade, our daughter started telling me she wanted to live with me in NY. My ex and I both decided early on that we would allow our daughter to decide where she wants to go to high school. California or New York. He asked her where she wants to live and she told him she wants to live in NY with her mom. He had her for four years and now she wanted to live with me for four years. Plus I have other children and she really wanted to be around her siblings. My ex agreed to the move and he sent my daughter out to me in July 2010. She's been here ever since, for two years and is now sixteen.

Currently, I don't have any official custody papers. We just basically rearranged our family how we wanted. My ex and I both agree she lives in NY. We are not disputing that. Her school is now requiring me to give them a current custody order since the old one was from when she lived in California. I need to petition to modify the old order since she no longer lives in California and I'd like to change jurisdiction to New York. So I contacted the court in California. The court clerk told me to hire at attorney. I contacted an attorney in California. I was told I'd need to file in NY since this is now her home state. I contacted an attorney in NY who told me the same. File in NY. However, everything I read seems to indicate I need to file for a modification in the state that made the original order. I contacted the court again, explained the situation again and asked the clerk how I can go about filing a modification from out of state. She also told me I need an attorney to do this. I contacted a different attorney in California. He told me I need to file in New York. I filed in NY to modify. Since California still has jurisdiction how can I facilitate communication between the courts so that either jurisdiction is changed or that the California court modifies the order to reflect how my ex and I rearranged our family?
Thank you for your time

 

[LdiJ]

What is the name of your state (only U.S. law)? I'm in New York but original custody order was from California.

I was divorced in 2006. I was living in Los Angeles county California and I made arrangements with my ex that I would relocate to New York because I was getting remarried and expecting a new baby. We had a 10 year old daughter and he and I verbally agreed she would finish out the school year (5th grade) with him in California and then move with me to New York. At the end of the year, days before she was supposed to move out to New york, he filed for custody. It happens. My daughter was 10 and wanted to stay at her school with her friends. In the end, I flew to California where we went through mediation. I agreed to joint custody where she had court ordered visits and would be with her dad during the school year and with me on breaks and in the summer. The custody orders specified she would remain at her school until 8th grade.

During 7th grade, our daughter started telling me she wanted to live with me in NY. My ex and I both decided early on that we would allow our daughter to decide where she wants to go to high school. California or New York. He asked her where she wants to live and she told him she wants to live in NY with her mom. He had her for four years and now she wanted to live with me for four years. Plus I have other children and she really wanted to be around her siblings. My ex agreed to the move and he sent my daughter out to me in July 2010. She's been here ever since, for two years and is now sixteen.

Currently, I don't have any official custody papers. We just basically rearranged our family how we wanted. My ex and I both agree she lives in NY. We are not disputing that. Her school is now requiring me to give them a current custody order since the old one was from when she lived in California. I need to petition to modify the old order since she no longer lives in California and I'd like to change jurisdiction to New York. So I contacted the court in California. The court clerk told me to hire at attorney. I contacted an attorney in California. I was told I'd need to file in NY since this is now her home state. I contacted an attorney in NY who told me the same. File in NY. However, everything I read seems to indicate I need to file for a modification in the state that made the original order. I contacted the court again, explained the situation again and asked the clerk how I can go about filing a modification from out of state. She also told me I need an attorney to do this. I contacted a different attorney in California. He told me I need to file in New York. I filed in NY to modify. Since California still has jurisdiction how can I facilitate communication between the courts so that either jurisdiction is changed or that the California court modifies the order to reflect how my ex and I rearranged our family?
Thank you for your time

If your ex still lives in CA and that is where the original custody order came from, then CA would continue to have jurisdiction. I am not sure why a court clerk would have told you differently.

The easiest and quickest way to resolve the issue is for you and your ex to submit together, a signed joint stipulation switching primary custody to you. You could use your original mediated order as a template to draw up an order that reverses primary custody.

 

[Zigner]

I am not sure why a court clerk would have told you differently.

The court clerk didn't tell her anything regarding where actions should occur (that would have been practicing law, which they aren't permitted to do.) The clerk simply told the OP that she needed an attorney.

 

[DNA2]

If your ex still lives in CA and that is where the original custody order came from, then CA would continue to have jurisdiction. I am not sure why a court clerk would have told you differently.

The easiest and quickest way to resolve the issue is for you and your ex to submit together, a signed joint stipulation switching primary custody to you. You could use your original mediated order as a template to draw up an order that reverses primary custody.

Thanks LdiJ
The clerk never told me to file in NY. The clerk told me I would require an attorney to file a modification. I contacted the clerk's office twice and was told twice I need an attorney. The attorneys in california and one NY attorney told me to file in NY.
My ex does not want to sign anything giving me custody because he does not want to put himself in a situation where he has to pay child support. So he wants my daughter here with me where she's happy but he doesn't want any official changes made that would cause him to lose any of his income. In the mean time her school needs an updated order. So I will have to go to court for this.

 

[ecmst12]

You need to file in CA. An attorney would be recommended. You don't have to ask for child support.

 

[CJane]

A stipulated agreement could easily include a section regarding support and that both parties are waiving the right to support.

 

[BL]

What is the name of your state (only U.S. law)? I'm in New York but original custody order was from California.

I was divorced in 2006. I was living in Los Angeles county California and I made arrangements with my ex that I would relocate to New York because I was getting remarried and expecting a new baby. We had a 10 year old daughter and he and I verbally agreed she would finish out the school year (5th grade) with him in California and then move with me to New York. At the end of the year, days before she was supposed to move out to New york, he filed for custody. It happens. My daughter was 10 and wanted to stay at her school with her friends. In the end, I flew to California where we went through mediation. I agreed to joint custody where she had court ordered visits and would be with her dad during the school year and with me on breaks and in the summer. The custody orders specified she would remain at her school until 8th grade.

During 7th grade, our daughter started telling me she wanted to live with me in NY. My ex and I both decided early on that we would allow our daughter to decide where she wants to go to high school. California or New York. He asked her where she wants to live and she told him she wants to live in NY with her mom. He had her for four years and now she wanted to live with me for four years. Plus I have other children and she really wanted to be around her siblings. My ex agreed to the move and he sent my daughter out to me in July 2010. She's been here ever since, for two years and is now sixteen.

Currently, I don't have any official custody papers. We just basically rearranged our family how we wanted. My ex and I both agree she lives in NY. We are not disputing that. Her school is now requiring me to give them a current custody order since the old one was from when she lived in California. I need to petition to modify the old order since she no longer lives in California and I'd like to change jurisdiction to New York. So I contacted the court in California. The court clerk told me to hire at attorney. I contacted an attorney in California. I was told I'd need to file in NY since this is now her home state. I contacted an attorney in NY who told me the same. File in NY. However, everything I read seems to indicate I need to file for a modification in the state that made the original order. I contacted the court again, explained the situation again and asked the clerk how I can go about filing a modification from out of state. She also told me I need an attorney to do this. I contacted a different attorney in California. He told me I need to file in New York. I filed in NY to modify. Since California still has jurisdiction

how can I facilitate communication between the courts so that either jurisdiction is changed or that the California court modifies the order to reflect how my ex and I rearranged our family?

Thank you for your time

Either NY will dismiss or communicate with CA. to see takes Jurisdiction .

Here is a little reading on the subject(s).

http://povertylaw.pbworks.com/w/page/17976096/Interstate Custody: Understanding the UCCJA, the UCCJEA, and the PKPA

 

[CourtClerk]

If you read your order, the answer would have been there plain as day. CA keeps jurisdiction until it gives it up and since dad remains in CA, the chances of CA giving it up are slim to none. You should have never filed in NY and dad should move to have that case thrown out since there is already an active case that addresses the child and the attorney(s) who told you to file in NY (given they had all the relevant information) should be disbarred or sent to extra MCLE

 

[DNA2]

Update

CourtClerk I did read my order. Multiple times. The answer was simply not as plain as day in my parenting plan. BL thanks for that link.

I just wanted to update and give details of my experience. I had my ex husband served through a process server. The attempts started on June 19th but they were not successful in serving him until July 5th when they went to his work. I had scanned the documents to him and emailed him before he was served and we has some interaction about it. He was aware our child's school needed a copy of an updated custody order. I emailed him the form on how to appear by phone and he had it notarized and then he faxed it to the court.

We had court this morning. I had no attorney (neither of us did). After I entered the court I was told to remain standing until they called my ex by phone. They contacted him and we were both sworn in and asked to repeat our names and addresses. I was then told to sit down. The judge asked me if I was filing for sole physical and sole legal custody and I said no, that I was filing to modify our old parenting plan from California, and that my ex husband and I would like to reverse the orders, allowing me physical custody, him visitation and both of us to have joint legal custody. The judge asked my ex husband if he agrees and he said yes. Then she asked to see a copy of our reconciliation parenting plan (we never saw a judge in CA, only a mediator but it was signed by a judge) and I gave it to the bailiff who brought it to the judge and she looked it over. She then asked how long the child has lived here and I said two years. She asked my ex and he said "two years" and then she again asked if he consents to reverse the custody agreement which would give me physical custody and he would get visitation during school breaks and he said yes, he agrees. She asked me if I agree and I said yes. She then asked us a series of questions, if either of us was coerced in any way by anyone to agree and we both said no. She told us we have a right to counsel and then she asked if he consents to waiving an attorney present (or something similar) and he agreed to no attorney. She asked me the same and I agreed to no attorney. She asked if either of us was under the influence of any drugs or alcohol that would impair our judgment and we said no. Then she asked him if he was given anything or promised anything for his testimony and he said no. She asked me the same and I said no. Then she modified the order based on consent of both of us and a change of circumstance and she reversed the custody order. The judge informed me I could pick up my new order downstairs on the way out and to mail my ex husband's copy to him. Then she said she I could also pick up our older order (that I had given her in court to read) at the same time. I was then told by the bailiff to leave the court room so I packed up my stuff and went down stairs.

45 minutes later I picked up my new order which states "final order on petition for custody" Then states "Ex husband's name having been served with a copy of the petition, been advised of the right to counsel, and having consented to this modification petition and the matter having duly come to be heard before this court; Now, after examination and inquiry into the facts and circumstances of the case after hearing the proofs and testimony, this court finds and determines that: court awards parties joint legal custody with physical custody to the petitioner. The following change of circumstance has occurred since the entry of the order dated august 2007 awarding custody and visitation: The subject child is now living in NY. It is therefore offered that the best interest of the above named child require that custody and visitation be awarded as follows, joint legal custody to both parties and physical custody to the petitioner and the father shall have the same visitaion schedule to which the mother was entitled when the father had physical custody (Pursuant to California court august 2007)"

Perhaps the consent of both of us and the fact we agreed on everything asked, made this go smoothly and no cost to myself or my ex (I had no filing fees) but in the end the order was modified in NY. I am unaware of any communication with the CA courts, that was never mentioned. I went in this morning not feeling particularly good about it based on everything I've been reading so I was overall happy with things. I spoke with my ex after and he was pretty happy that he school has what they need so it won't cause a problem for her education.

Thanks for the feedback everyone.

 

[Ohiogal]

CourtClerk I did read my order. Multiple times. The answer was simply not as plain as day in my parenting plan. BL thanks for that link.

I just wanted to update and give details of my experience. I had my ex husband served through a process server. The attempts started on June 19th but they were not successful in serving him until July 5th when they went to his work. I had scanned the documents to him and emailed him before he was served and we has some interaction about it. He was aware our child's school needed a copy of an updated custody order. I emailed him the form on how to appear by phone and he had it notarized and then he faxed it to the court.

We had court this morning. I had no attorney (neither of us did). After I entered the court I was told to remain standing until they called my ex by phone. They contacted him and we were both sworn in and asked to repeat our names and addresses. I was then told to sit down. The judge asked me if I was filing for sole physical and sole legal custody and I said no, that I was filing to modify our old parenting plan from California, and that my ex husband and I would like to reverse the orders, allowing me physical custody, him visitation and both of us to have joint legal custody. The judge asked my ex husband if he agrees and he said yes. Then she asked to see a copy of our reconciliation parenting plan (we never saw a judge in CA, only a mediator but it was signed by a judge) and I gave it to the bailiff who brought it to the judge and she looked it over. She then asked how long the child has lived here and I said two years. She asked my ex and he said "two years" and then she again asked if he consents to reverse the custody agreement which would give me physical custody and he would get visitation during school breaks and he said yes, he agrees. She asked me if I agree and I said yes. She then asked us a series of questions, if either of us was coerced in any way by anyone to agree and we both said no. She told us we have a right to counsel and then she asked if he consents to waiving an attorney present (or something similar) and he agreed to no attorney. She asked me the same and I agreed to no attorney. She asked if either of us was under the influence of any drugs or alcohol that would impair our judgment and we said no. Then she asked him if he was given anything or promised anything for his testimony and he said no. She asked me the same and I said no. Then she modified the order based on consent of both of us and a change of circumstance and she reversed the custody order. The judge informed me I could pick up my new order downstairs on the way out and to mail my ex husband's copy to him. Then she said she I could also pick up our older order (that I had given her in court to read) at the same time. I was then told by the bailiff to leave the court room so I packed up my stuff and went down stairs.

45 minutes later I picked up my new order which states "final order on petition for custody" Then states "Ex husband's name having been served with a copy of the petition, been advised of the right to counsel, and having consented to this modification petition and the matter having duly come to be heard before this court; Now, after examination and inquiry into the facts and circumstances of the case after hearing the proofs and testimony, this court finds and determines that: court awards parties joint legal custody with physical custody to the petitioner. The following change of circumstance has occurred since the entry of the order dated august 2007 awarding custody and visitation: The subject child is now living in NY. It is therefore offered that the best interest of the above named child require that custody and visitation be awarded as follows, joint legal custody to both parties and physical custody to the petitioner and the father shall have the same visitaion schedule to which the mother was entitled when the father had physical custody (Pursuant to California court august 2007)"

Perhaps the consent of both of us and the fact we agreed on everything asked, made this go smoothly and no cost to myself or my ex (I had no filing fees) but in the end the order was modified in NY. I am unaware of any communication with the CA courts, that was never mentioned. I went in this morning not feeling particularly good about it based on everything I've been reading so I was overall happy with things. I spoke with my ex after and he was pretty happy that he school has what they need so it won't cause a problem for her education.

Thanks for the feedback everyone.

The court just broke the law then. Nice.