Legal Question in Family Law in Virginia
Can I dismiss plainfiffs claim b/c their motion not drafted accurately
I have sole & physical custody. Original order 10/01/97. In 2002 he tried to get custody and lost. As a result a new order was entered 8/25/04 which stated the same, sole & physical to mother. 10/2004, I recv'd Motion to Amend Custody & Summons by ex who wants custody of child again. However, his motion is inaccurate. He is requested to change or modify the order of 1997 and asking for sole & physical custody. Instead he should be requesting that the 2004 order be changed. Correct? Can I have his claim dismissed? Also, the reason he states is that I moved from Va to MD without his consent. However I have a peice of paper with his signature consenting to our child being registered in the Maryland school system. Does this keep me safe from his suit. Can I have his claim dismissed for fraud he is attempting to commit to the court. My goal is to have this all dropped without going to court. In my action I wish to also claim t/burden of driving to Va for court. I have a child in school and need to be home when she gets home & another who is only 4yrs. I am t/primary care giver. No daycare to watch him. I cannot take children to court. Especially if I had permission to enroll her in MD school AND if his claim can be dismissed for a flaw
2 Answers from Attorneys
Re: Can I dismiss plainfiffs claim b/c their motion not drafted accurately
1. Can you have his suit dismissed without having to appear in court?
No. If the case was filed in the wrong place (jurisdiction) you could hire a lawyer to go to court for you to argue that alone. If jurisdiction is proper, then the case cannot be dismissed prior to the actual hearing. The case probably wouldn't be dismissed for not citing the most current Order. As a matter of law, the Judge cn only consider the last Order of the Court when considering any Motion.
Im sorry that it will be inconvenient for you to appear, but you will have to.
2. He agreed to the Maryland enrollment. If he joined in the enrollement, that is pretty good evidence that he knew about the move before he filed the Show Cause. Virginia law requires people in custody cases to notify each other 30 days before they change their address so the other parent can modify the Order before the other one moves. He may Show Cause you if you didn't send that notification but he can't prove he's been harmed if he signed the enrollment papers.
3. Fraud. There is no fraud. He may however have no good reason to haul you into Court and if you can prove to the judge that he has no MATERIAL CHANGE OF CIRCUMSTANCES then the judge may award you any attorneys fees you have to spend to defend yourself. And you always need a lawyer in court.
Good luck.
Re: Can I dismiss plainfiffs claim b/c their motion not drafted accurately
One thing is for sure: you cannot have his(husband or exhusband's)"claim dismissed for fraud
he is attempting to commit(sic)to the court".(It might be dismissed for other reasons but most certainly not for fraud,)
As for your other questions, rather than attempting to dabble at lawyering that could have adverse consequences for your case, I would suggest at the very least that you arrange to have a consultation with a Virginia lawyer who is knowledgeable regarding the Commonwealth's domestic relations laws and who should be able to answer your remaining qestions and, also, hopefully, advise you as to an appropiate course of action in response to your husband's action in the Commonwealth.
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