An order was in place for custody and visitation. We moved back in together 2 months later. We therefore did not follow the order. 3 years after that I was kicked out of the house (while they remained in the marital home with the kids) and I had to live with family in a neighboring state. We stayed separated for a year and obtained a divorce.
In regards to custody of the children:
I want to seek primary custody.
We did not follow the original order due to the fact we lived together in the marital home and resumed family status. Do I:
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motion to dismiss original order because it is not valid, me one one state and they are in another,
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file a new custody/visitation complaint after the first is dismissed, or
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even though the original order is of no use, file a complaint to modify the original order , and seek primary custody in the modified order ?
Everything starts over now. Since nothing in the original order mattered since you lived together, you need a new order. The situation has changed and new orders need to be in place. It may be that the same arrangement will be ordered or now that the circumstances have changed, the arrangement (orders) may be different. You have a whole different ballgame now.
And my question is: Legally, do I need to have the original complaint/order dismissed before starting a brand new one? Or
Do I just begin a whole new complaint/order
You should file a motion to modify custody based on a change in circumstances and can use the original file number.
Modifying the old custody order allows using the same file number, I understand. Doesnt this mean that any reference to the old order can be made, correct? I don’t want to be able to refer to the old order at all. Making a motion to dismiss the old order will totally omit everything in the old order correct? Starting fresh and new I would begin a new complaint for custody with no prior order to refer to correct?
The old order can and will be referred to in the modification, as it the only order in existence. Even if you move to dismiss the old order, it will still be admissible moving forward.