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This is a question for family law research. Not on an actual case. Dealing with family law and military family custody cases.

Ladera Ranch, CA |

Scenario a military married couple with a child stationed in San Diego. The couple moved here with the intent to stay only for a tour of duty of three years their families are in New York. By federal law they can remain residents of New York they pay taxes in NY drivers license are NY etc. Military spouse files for divorce in CA. Now the child in a custody case can be claimed by California to have CA as its state of resident. The mother is left single in a state with no support system forced to stay in CA if she wants to be with the child. Mother wants to go back to her home state with her family and support system. Father wants child in CA because he is stationed there. After a few years mother continues to have a financial hardship making it in a State with no family support

Attorney Answers 4

Posted

I am sorry your friend is going through this. Thus I changed the topic to divorce as it is a jurisdictional question. I had a case similar and in San Diego. I successfully petitioned to quash the San Diego case and move it to Michigan. However, I did that at the start of the case and time is of the essence. Attorney assistance will be suggested.

Attorney Williams practices FAMILY LAW throughout the State of California and may be reached at (831) 233-3558 and offers free consultations. The response provided in this forum is not intended to create an attorney-client relationship. The information offered in this response is for general informational purposes only and should not be relied upon without further consultation with a legal professional after all relevant facts are disclosed and considered. DANIEL S. WILLIAMS, ESQ. LAW OFFICES OF DANIEL S. WILLIAMS 500 LIGHTHOUSE AVENUE, STE. A MONTEREY, CA 93940 (831) 233-3558 -- OFFICE (831) 233-3560 -- FAX

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Posted

I tried adding this to the above comments it doesnt let me so here is the rest. Father over time uses mothers financial hardship to gain control over the child requesting primary and legal custody. The child would have had its mother and grandparents etc helping raise the child if back in NY. Mother is moving back to NY leaving her child behind because she cant afford to stay in California. Should there be a bill or a law that when military families file for a divorce in a state they are only stationed at and not the state they are legal residences of that the state they pay taxes in and legally call their home be also considered for the child home residence. The military persons situation needs to be considered too but for lack of space only presented one side of this situation. The single mom wont get help from the military once divorced so she is really stranded and this isnt fair to the non-military spouse who is left to fend for themselves expected to get a great paying job after they spent years following around the military persons career. I am looking to address the issues here the law etc to formulate a more narrow focused issue here . I am doing research on this issue to present to a military group for discussions on family issues. Divorce rate is growing high in military.

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Posted

I am also writing an article on this for a national paper maybe you could help me focus the issue and I can refer to you in the article since you worked on a case like this

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Posted

The scenario is not an exact person but a mix of afew people I have heard of going through or have gone through this

Daniel Seth Williams

Daniel Seth Williams

Posted

Email me at danwlaw@gmail.com and we will get in contact, glad to help.

Philip Douglas Cave

Philip Douglas Cave

Posted

The military itself has no involvement in this situation, other than if the person becomes a single parent.

Posted

Mr. Williams is very kind. Avvo is not the correct site for you. It is not for hypotheticals.

The above is general legal and business analysis. It is not "legal advice" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.

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Its not just a hypothetical the issues are real but you have to simply the complex issue somehow in limited space this is the beginning question of very serious issue. The cases I am aware of are much more involved the hypothetcial presented here is the core of the real issues. Some of the people I know are too far along in thier own case to have help like Mr WIlliams did but there is nothing wrong to see how future families can be helped. This is not for random purpose this is to try to make a difference to help both the former spouse and military and this issue isnt addressed enough. Having been involved with military issues for 15 years there is nothing wrong with trying to educate and research and then present solutions through the appropriate channels. To make clear this "hypothetical" isnt presented for fun for college or a term paper its to make a difference. Thank you

Posted

Pretty common scenario, you have a question?

READ THIS BEFORE CALLING OR EMAILING ME: I am licensed to practice before the state and federal courts in Virginia. We have not established an attorney-client relationship unless we have a signed representation agreement and you have paid me. I give a 100% effort to get you on the right track with your issue. Sometimes that means legal educational information, sometimes that means counseling and non-legal guidance. You should speak with an attorney to whom you have provided all the facts, before you take steps that may impact your legal rights. I am not obligated to answer subsequent emails or phone calls unless you have hired me. I wish you the best of luck with your situation.

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Can the ex-spouse of an active duty military person move back with their family with the child only at the beginning of the case....the military person sold the ex spouse on a promise that agreeing to pay more than needed by law in child support to stay near him then the military person gets remarried decides he doesnt want to pay the extra child support and then reduces it even more because he gets more custody too and then the ex military spouse struggles to meet living expenses because they spent most of their career following the ex military around and they cant find a high paying job especially in this economy ...so now the non military spouse faces losing custody due to situation. If she moved home with her family and support system where her family owns a business too that she could work at and take care of the child but now the child as been in the one state for a few years and the courts see her move now or request to move as a typical custody case not a military family situation.

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Posted

Thus back to the beginning jurisdiction can only matter at beginning of case right? Seems to me that the mother made a mistake in good faith of her ex who thought he would live up to his agreement to pay the extra in child support it was even noted in a custody order that the father knew he was paying more but then the new wife comes in a few years later and doesnt like it thus the old wife and the promises were broken and the old wife is the one holding the bag caught now between a rock a hard place because now the custody case isnt new.

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Posted

The point of all of this is to help military families make the right decsions at the beginning of the case to not be well for lack of a better term "screwed" or set up to be screwed down the road. Military talk once one situation works successfully for one they share it.

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

As attorney Scholl indicated below, the matter is one for the courts--being in the military has nothing to do with the laws that apply or their application. The mother in the hypo you describe would have to hire an attorney and seek modificaiton of the final order. Otherwise she is stuck with the deal she agreed to.

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Posted

Thank you very good information

Rixon Charles Rafter III

Rixon Charles Rafter III

Posted

BTW, nearly every base has family law clinics--where military JAGs conduct education classes for military members or dependants. They address counseling, therapy, family advocacy, divorce, child custody, visitation, retirement, court processes etc. Sounds like you are trying to do research in a subject area that is already available to military members and their dependants--as a free benefit.

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Posted

I am in and out of these departments often for many questions and it helps if I come in more focused and get my confusion on a topic out of the way before I come in now I know a few more focused issues .....Jursidiction, better to have this addresses at beginning, if later it has to be a modification....and its not as easy to get info as you think.

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Posted

Addressed ....not addresses.

Posted

It seems that you may be on the wrong track. Residency of the parties in order for a court to have personal jurisdiction is not the question. The question is which court, if any, has subject matter jurisdiction under the Uniform Child Custody Jurisdiction Enforcement Act and the Parental Kidnapping Prevention Act. The two questions are not the same, and may have different answers.

You also state "after a few years" the mother "continues to have a financial hardship." That implies that a final order may have already been entered, in which case you are looking at a child custody modification case, which is governed by different standards from initial custody decisions.

The fact that one spouse is in the military may affect factual determinations, but the military service does not affect the law that is applied.

This response is for information purposes only, it does not create any attorney-client relationship. Responses to questions posted on this Forum are of a general nature only. Because it is not possible to have all of the facts of your issue addressed in this forum, you should consult with an attorney to review the unique circumstances specific to your situation. www.TheSchollLawFirm.com

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Maybe.. let me read into that jurisdiction act does each state has it own laws or is there one national law that governs all states'

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I may be on the wrong track I see where you are coming from

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I am reading this ..now the case of the parents who have been divorced for a while there may be no help for them ...but for a new military family getting divorced this act reads as if it does play a key role does this act or is this act one that a miltary family needs to address asap when about to file for a divorce or when they are served papers. Because lets say the non-military spouse is served papers of course the military person wants thier child to stay close to their duty station but is that fair to the other parent to be left stranded without support to raise the child or help raise the child.....if both parents are legally residents of another state and the child has resided in the current state for more then 6 months only because of the temporary duty station shouldnt the child be a resident of the same state the parents claim on their taxes ...back to the beginning of New York residents and Californa duty station....which state would legally be able to claim jurisdiction over the child the legal state resident of the parent or the state for the temporary tour of duty .....does that make sense....its like a military family member can wait to get to a duty station that fits them being single and then file for divorce knowing the other parent may have to leave without the child becasue they cant afford to live on their own in the state where the military is stationed.

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Posted

Oh I have one more interesting question......for the parents who have been divorced for a while and the non-military parent was forced to stay in California because that is where the childs miltary parent was stationed.....can the non-military parent have any grounds to move back to thier orgininal state to be back with their family with the child once the military person announces they are retiring? I think this would fall under a jurisdiction issue and a modification to child custody

Scott Allen Scholl

Scott Allen Scholl

Posted

Remember, "home state" has no connection to "legal residency" (or domicile) of the parents. It is where the child has resided with a parent or a person acting as a parent. Similar terms, different meanings. I understand that the parents may be temporarily away from their legal residences, but that is different from the child temporarily being taken out of the state when residing in that state with a parent. If the child goes from California to spend Christmas with grandparents, the six months does not start over again. The standards for the military members are the same as for everyone. We have a mobile society, and while the military can be ordered to relocate, many do not feel they have an option if their civilian employers want them to transfer (or if they need work and an out of state employer is hiring). The standard for an initial custody award will be the best interests of the child -- which may or may not mean custody goes with a parent that will soon relocate. The standard for a modification is different, in that you must show a material change of circumstances. That is difficult to do if your allegations is that things are still the same and haven't gotten any better.

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