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Margaret H Leek Leiberan
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Margaret H Leiberan’s Answers

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  • Aunt has physical custody but not legal custody

    i am the father of my boys, the mother had custody of them but i had found out that she has passed away and now the aunt has the boys but no one has told me about the mother passing away now what can i do to get my boys?

    Margaret H’s Answer

    The Aunt has no right to custody unless she files for custody as a third party caregiver and establishes that for the last six months she has been the children's primary caregiver. Unless your parental rights were terminated or the Aunt has been awarded custody, at this point you have the legal right to custody. However, you do not want to traumatize the boys by putting them in the middle of a confrontation over custody. Talk to the Aunt to see whether she will arrange for an orderly transfer of custody to you. If she refuses, you should be able to get an order of assistance from the court which will force her to give the children to you. Of course, she may respond by filing for custody herself, assuming that the children have been in her care long enough to establish the statutory criteria. As you plan what you will do, remember that the children have just lost their mother and are likely in a fragile state. If you are a virtual stranger to them, you need to do a gradual transition to custody so that they are not subjected to further trauma. Also, you need to make sure that they are not cut off from contact with the Aunt. If the Aunt will not work with you, this could get very messy and since, if you have to fight for custody you really need a lawyer, it could also be very expensive.

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  • Can you appeal an already court ordered change of domicile?

    I recently was granted a change of doicile to move to Texas with my daughter. Her father opposed it but the judge ordered it to me. I have not left the state of Michigan yet and I just found out he is appealing it. How long do I have until I can m...

    Margaret H’s Answer

    Laws vary state to state. Generally once a judge issues a final order allowing a move, the party is allowed to move. However, the other party has the right to appeal and may be able to get a stay of the judge's order from either the judge who issued it or the appellate court. If a stay is granted you will not be allowed to move until after the appeal is decided. If no stay is issued, you probably can move but may be required to move back if the appellate court overturns the trial court. You should consult with an attorney in your state regarding the likelihood of a stay being granted and/or the appellate court overturning the trial court.

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  • What does affirmed mean?

    My appeals said the decision will be affirmed and benefits will remain the same. Does this mean I lost the appeals?

    Margaret H’s Answer

    Yes, assuming you were the appellant (the one who was trying to change the existing decision). When the appellate court affirms the lower court or agency's decision, you have lost at least that stage of your appeal. Depending on the court system in your state there may be a higher court with discretionary review. In Oregon, Court of Appeals decisions can be reviewed by the Oregon Supreme Court. However, you have to convince the Supreme Court that there is an issue in the case that could impact many other people, such as a new statement of law. If the decision in your case was primarily based on the specific facts of your case, your appeal is over and you have lost.

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  • Do i need to file custody form with my divorce form if my astranged husband has been abscent for three years and counting?

    leagally i am still married and want to file divorce. we have been seperated for three years (not leagally). He is the father of my 2 children, but has had no (zero) contact with my children or I since the seperation. He does not pay child supp...

    Margaret H’s Answer

    If you were married when the children were conceived, your husband is the presumed father of the children and has full custody rights even if he is not listed on the birth certificate. I strongly advise you to go forward with a divorce so that you can get a judgment awarding custody to you and, assuming that he does not appear, awarding your husband no parenting time with the children. Until you have this order/judgment your husband has the same custody rights as you to your children. If he were to come back and seek contact, you could seek an emergency order but those are a lot harder to get. You and your children are far more secure if you have the custody judgment.

    If you cannot locate your husband, it is possible to serve him by publication. However, this is a somewhat complicated process and I would recommend that you consult a lawyer and not try to do this yourself. If you are able to find your husband and serve him personally, then you may be able to do what you need using the forms provided by the State.

    Lastly, child support. Since the support is for the benefit of your children, you cannot waive it. I understand you not wanting to wake the sleeping tiger by asking for child support but you will be required to ask for this as part of your divorce.

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  • Can a person going through divorce date between the time he is served and the court makes it final. He did'nt sign served papers

    So when husband was served by wife who initally filed, he would't sign and it goe back to court. Can she start seeing someone before court makes it final.

    Margaret H’s Answer

    • Selected as best answer

    There is no legal prohibition on dating while a divorce is pending (or for that matter in the middle of a marriage in which no divorce is pending). The only things you legally cannot do until the divorce is final is remarry or enter into a registered same-sex domestic partnership. If there are child custody issues, exposing the child to a new relationship while the divorce is pending can be viewed by a parenting evaluator as the parent putting their needs above those of the child. However, dating while the divorce is pending will likely have little impact even on a custody determination unless the child is being exposed to multiple dates of the parent or there are issues with the person that the parent is dating that could impact the safety of the child.

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  • If you have physical custody can you move with out telling the father if its still in oregon.

    i am thinking about moving to a ifferent town

    Margaret H’s Answer

    No, you cannot move without telling the other parent and letting them know your new address. If you are moving more than 60 miles, you will likely need the permission of the court before you move. Some custody awards actually have mileage limitations that are for fewer miles than this. If you move without the permission of the court, you risk not only being found in contempt of court but also losing custody. Courts will generally only allow the move if they find that it is in the child's best interest. If the child's contact with the other parent will be affected, you may well not be allowed to move with the child. If father has already has only limited contact with the child, this may not be an issue for you. You should contact an Oregon lawyer who specializes in family law before you plan any move so that you do not do something that could cost you cusody of your child.

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  • My Fiancée and I bought a house last september and we have two children. She wants to be done the the relationship what do I do.

    She works full time and goes school full time. I work full time and go to school full time as well but I take care of the kids the majority of the time. She also makes a lot more then I do and she wants to keep the house. I would like to either se...

    Margaret H’s Answer

    It is important that you immediately consult with an attorney who has experience in family law cases. Since you are not married there is no issue of spousal support and child support will be defined by the state guidelines. However, the division of property can be complex, espescially if one of you came into the relationship with more property than the other. After an initial consult with a lawyer so that you know your rights and the likely outcome of litigation, you may be able to enter into settlement negotiations with your Fiancee on your own. You should not enter into such negotiations without first consulting a lawyer so you know your rights.

    The above is offered for general information purposes only and does not
    constitute legal advice or create an attorney/client relationship.

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  • What are my options

    i have recently seperated from my wife of three months and moved out of her home with my son from a previous marriage. he is now staying at my mothers and i am sleeping in my car. my first priority is to find somewhere to live for us. the council ...

    Margaret H’s Answer

    It is impossible to tell from your question what you are really asking. There are forms on line that will help you file for a divorce without the aide of an attorney. You should try searching both under the court of the county in which you live and for forms created by the State courts. Do not use generic forms created for use in any state as they may not be sufficient under Oregon law. There are also low cost legal clinics in some areas of the state that may be able to help you with a divorce. Since yours is a short term marriage with no children of the marriage and no assets, it should not be a complex divorce.

    If your question is what to do about finding a place to live, it is not a legal question. There are agencies that can help but they differ from county to county so what agency or charity can help will depend on what area of the state you live.

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  • My case was dismissed for lack of jurisdiction in the court of appeals, is there anything I can do, or is it all over?

    I received notice the Court of Appeals dismissed my appeal for " for lack of jurisdiction in accordance with the opinion of this court." I have received nothing further - what should I do if anything, I was pro se

    Margaret H’s Answer

    • Selected as best answer

    An appeal can be dismissed for lack of jurisdiction because a valid, appealable judgment was not issued in the trial court. Sometimes the court issues an order (which may not be appealable) and does not thereafter issue a judgment that would be a final appealable determination of that issue. If this is the basis of the dismissal, you can cure the problem by going back to the trial court and obtaining a judgment. There is likely something in the record from which you can determine the basis of the decision of the Court of Appeals, perhaps in a motion filed by the other party. If not, most court's will allow motions for reconsideration that seek clarification of a cursory opinion, though they may ultimately deny the motioun and not actually issue a further clarification. To know how the appeals courts view such motions for reconsideration in your state, you really need to consult with a local attorney who has experience in appeals. An appeals attorney may also be able to help you determine the basis for the court's decision without seeking further clarification.

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