Legal Question in Family Law in California

Re: Jurisdiction

Apparently both NY and CA Courts are agree that CA has jurisdiction over the children.

Which means that if the children are not returned to CA, and an order is entered, giving custody to their parent, living in CA, in your absence, or refusal to subject yourself to CA Court jurisdiction, the father via the CA Courts, can ask NY to enforce removal & return of the children, to CA.

Given the circumstances you describe, I would suggest that you relinquish custody of your children to a court agency, for their payment of the costs of returning the children, to CA.

Then you arrange for visitation and child support to child welfare in CA, per your income.

I know this suggestion may sound crazy to you. But, it is more sensible, and will be less painful, than your idea about moving in with EX's mother in CA, so that he can have "supervised" visitation, while you put your life and your children's future on hold.

Think about my suggestion, as a type of rope pulling game. Let the rope go,...

Good luck,

Phroska L. McAlister,ESQ

Re: Jurisdiction

Undoubtedly, CA., has jurisdiction over "your children" and they MUST be returned, since it appears that both the CA & NY Courts recognize CA jurisdiction over the children. And, if you keep the children from returning, you could be subject to severe penalties, viz the CA & NY Courts.

However, my response re "the Court Agency" was based upon the idea that a NY Court and NY Attorney told you that you were instructed, directed or ordered to "voluntarily" return "the children" to CA. OR ELSE, CA or NY would enforce their return, "presumably" at [the] state's expense.

Also, since YOU said the CA case was filed AFTER you left CA., and was in response to your NY application, it did not appear that CA had obtained jurisdiction over "your person". If that was the case, "you personally" cannot be held in violation or contempt of a CA Court Order, if YOU do not return, since neither court jurisdiction over you, the case, nor a restraining order existed, (that could have violated) in CA., at the time you left, with the children.

The substance of my response was and remains, that YOU do not necessarily have to be the one to return the children, nor may YOU be compelled to resume residency in the state of CA., if you are presently without means or inclination, to do so (AND, YOU are not in violation of an existing Court ORder).

Further, if you elect to relinquish custody or control of your children, to the person, persons, Court or "agency" demanding return of the children, "they" will need to arrange for the children's return transportation, care and housing. Then "they" can petition YOU for child support, to be paid pursuant to your means; and YOU can seek visitation. If visitation becomes severely problematic, wait. Your children will eventually come back to you, on their own.

There are never any winners when parents fight over children. Thus, ending disputes, between the parents, at all costs, rather than continuing them, whether through the courts or elsewhere, always gets my vote.

Thus, my suggestion, as before, is to remove yourself from the fray, ie., "let go of the rope"..., in order to protect your children, in the long run.

Admittedly, this is not a welcome or "politically correct" position. But, it is intended to help you to remember that YOU and YOUR CHILDREN, are separate people; and if you are able to flourish, your children can reap the benefits. If you sacrifice yourself to an unending fight with your EX, your children will also be sacrificed.

Good luck,

Phroska L. McAlister,ESQ

Re: Jurisdiction

The most serious sanction that the court could order would to remove the children from you and give custody to father. You should return to CA and file a request for child support. If you left California either: 1. with his consent and knowledge; 2. because of his abusive conduct; 3. His failure to provide support and you have family in New York or other good reason for moving to New York.

I am no certain what the other attorney was referring to in regard to a public agency taking the children and returning them to Ca. In most cases if a public agency, Child and Family Services, it can be very difficult to get the court to terminate its jurisdiction.

Violating a court order for custody and visitation of a California order in this case could be interpreted as being a felony.