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My wife left me and took our 5 month old daughter to sacramento california and is filing for a divorce..6 weeks ago she left

Bend, OR |

she has said i will never see her again .i work 4 hours from my home and am not home but once every 5 weekends...she claims to have sent paperwork and if i dont respond she gets full custody. can she legally take my daughter from oregon and keep her in california? what happens if i dont get the paperwork?

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Attorney answers 4

Best Answer
Posted

You most likely need to consult with a divorce lawyer who is licensed to practice in both California and Oregon - but certainly in California. If she's filed in California, then a response would need to be filed in a California court.

The rules for service are fairly complicated. In essence, the idea is that the person filing the lawsuit must use all reasonably available means to give notice to the person being sued. If you haven't received a copy of the summons and petition that she filed, then the case can't proceed - but if she can demonstrate that she's used all reasonable means to serve you, then she can ask the court to 'serve by publication' - that is, to take out an ad in a newspaper in your area, and you're deemed to have been served after it's run for a month. So in theory it is possible for someone to have been served - and therefore to fail to file a response, and to lose a whole lot of rights - without ever knowing about it. This is why you need to talk to a California attorney right away.

Please read the following notice: <br> <br> Jay Bodzin is licensed to practice law in the State of Oregon and the Federal District of Oregon, and cannot give advice about the laws of other jurisdictions. All comments on this site are intended for informational purposes only, and do not constitute legal advice or create an attorney-client relationship. No posts or comments on this site are in any way confidential. Each case is unique. You are advised to have counsel at all stages of any legal proceeding, and to speak with your own lawyer in private to get advice about your specific situation. <br> <br> Jay Bodzin, Northwest Law Office, 2075 SW First Avenue, Suite 2J, Portland, OR 97201 | Telephone: 503-227-0965 | Facsimile: 503-345-0926 | Email: jay@northwestlawoffice.com | Online: www.northwestlawoffice.com

Posted

I agree with my colleague You should indeed seek counsel to personally review all legal issues.

Posted

I agree with Mr. Bodzin. You need to meet with an experienced attorney ASAP. If you did NOT get married in CA, then OR will probably have juridiction for this divorce. Also, the Uniform Child Custody Jurisdiction Act insures that custody will be determined in the state where the child resided the last 5 years. With such a small child, you have already lost valuable time by not seeing an attorney right after she left. At a minimum, will we receive visitation with your daughter. Good luck.

Be sure to designate "best answer." If you live in Oregon, you may call me for more detailed advice, 503-650-9662. Please be aware that each answer on this website is based upon the facts, or lack thereof, provided in the question. To be sure you get complete and comprehensive answers, based upon the totality of your situation, contact a local attorney who specializes in the area of law that involves your legal problem. Diane L. Gruber has been practicing law in Oregon for 26 years, specializing in family law, bankruptcy, estate planning and probate. Note: Diane L. Gruber does not represent you until a written fee agreement has been signed by you and Diane L. Gruber, and the fee listed in the agreement has been paid.

Posted

I agree that you need to see a family law attorney immediately. There are both subject matter and personal jurisdiction issues. I doubt CA has personal jurisdiction over you, but it will if you file a general response to the CA petition. Instead, you should file a special appearance to challenge personal jurisdiction over you. Further, it appears that OR is the "home state" of your daughter, or at least has better jurisdiction over your daughter than CA does, and therefore OR has subject matter jurisdiction over custody and parenting time issues. You should file for divorce in OR and have wife served. It may be possible to obtain an emergency custody order since wife appears to have fled with your child and is now saying you will never see her again. There are some practical problems because it appears you have only seen your daughter every 5 weeks for a couple days, so your daughter may not be very bonded to you. You really need to sit down with a good local family law attorney and explore your options. At the end of the day, even with OR having jurisdiction, an OR court may ultimately allow wife to relocate to CA if it is established your daughter does not have much of a bond with you. These are difficult issues that require some very fact-specific counseling. Good luck.

Diane L Gruber

Diane L Gruber

Posted

Hey, Herb. Long time, no see. Glad to see you are still practicing.

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