Legal Question in Family Law in California

Re: Child Custody/Father's Rights

Presumably, your husband has visitation privileges. How is this being handled, with the child now residing in California?

Certainly, your husband would have grounds to seek relief in the original court in which the custody determination was made.

If your husband is able to obtain relief from the New York court, i.e., an order that the child be returned to New York, etc., then if the child is in California, he should be able to apply to the California court (i.e. the county where the child is located) to have the New York order enforced by the California court.

Of course, bear in mind that the mother of the child will be entitled to due process, whether in California or New York. That is, she would be entitled to at least have proper "notice" that your husband is seeking relief in New York, and will have an opportunity for a hearing before the New York judge.

Additionally, even if a New York judge issues a favorable order, the California court will be able to review that order before ordering it enforced by local California authorities. In all likelihood, if the mother really wants to fight, your husband will have to obtain an order in New York first, then use that as the basis for getting an order in California that can be enforced in California. It is possible that your husband could go directly to California, however, the California judge might direct your husband back to New York.

It is important that your husband contact a lawyer as soon as possible to review all relevant information and the existing case file, as this is not something he is advised to handle without an attorney. In fact, he may need two attorneys--one in New York; a second in California.

You may be correct in that the constant moving is not a stable environment for the boy. This may serve as a basis, or partial basis, to claim a "change of circumstances" which might enable your husband to claim custody. However, the court will look at all relevant factors, and ultimately will determine whether custody should be changed based on what the court thinks to be in "the best interests of the child."

I strongly recommend that you consult with an attorney immediately so that you can explore your legal rights, obligations, and options. If you wish to discuss retaining my services, contact me at:

[email protected]

(973)-605-8995

(*Licensed in New Jersey, Maryland, and Dist. of Columbia)

[Disclaimer: The above comments are not intended as nor should they be relied upon as "legal advice", which can only be obtained by personal consultation with a retained attorney; at which time the specific facts and circumstances of your case can be thoroughly evaluated. This reply is provided for general informational and educational purposes only, and does not create an attorney-client relationship with the responding attorney.]

Re: Child Custody/Father's Rights

Because there is a child support order from NY, it is reasonable to presume that there were custody orders also made in NY. Because all the moves by the mother were made inside the past two months, it would appear that under the UCCJEA that NY is the "home state" for custody purposes.

However, the problem with NY exercising jurisdiction now is that none of the parties (father, mother, child) currently reside in NY. Also, it appears that the child never resided in NJ and I therefore believe that NJ will not have jurisdiction.

Because none of the parties reside in NY and mother and child currently reside(?) in California, I believe that NY may not exercise jurisdiction as a forum non conveniens and I am of the opinion that California may indeed be the forum to seek a modification of custody orders - even if on an emergency basis.

The foregoing is an opinion only; it is based upon a relatively small amount of information and should not be construed as legal advice. If you intend to take any legal action, you are strongly advised to seek legal counsel.

Regards,

Damian Nolan

Re: Child Custody/Father's Rights

Wherever the child resides currently. Call me directly at (619) 222-3504.