Default


#1

Alittle about the issue in hand…I use to live in NC, but moved to the west coast at the beginning of this year. I have had full physical custody of my child since the day she was born. Her bio-father has never wanted anything to do with her (per se because he was in the military, married and wanted to protect his retirement). The child support division spent over a year trying to get a DNA done, but he hired an attorney and fought it, ( he did pay little money for about a year and it went from his attorney, then mailed to me). He finally got out of the military and allowed the court to continue with the DNA and it went to court a few months after I left NC. 6 months after I have left NC, I hired an attorney and was filing the paperwork for full physical custody (birdy told me, he had filed papers to take full physical custody of her, after he didn’t want anything to do with her) My attorney had him served and his 30 days has passed with no response to our order. I was finally served with his paperwork and my attorney noticed that he had the Child support case Doc number on the papers. He said in his papers that there was already a case opened on custody for my child. If so, I never recieved them nor knew anything about it. The only case I knew about, was child support and that was done way after I moved from the state.

  1. He has never wanted anything to do with my child in over 3 years, can that be held against him?

  2. I thought child support has nothing to do with custody or visitation and they are their own services. Can he use that as NC being the home state?

  3. If he was served the papers before me, which state is the home state?

  4. My attorney was kinda worried that his attorney there in NC is going to place me in default because I was finally served the papers after he was served first with ours. Can that happen?

  5. Could this be a case of selfishness because he is having to pay child support?

  6. Can a 3 year old have issue present/future from his absent due to his part? I tried my hardest to have him in her life, but all I got were threats, letters from his attorney saying he would take me to court for a restraining order, and rude name calling. I do have all documents to prove my case.

Thank you for taking the time to answer questions from someone who missing NC. I am just confused on everything going on right now.


#2

The fact that he has not had anything to do with the child for 3 years will weigh heavily in a custody action. You are the primary caregiver, and the only parent the child has ever know. I cannot imagine that a judge would grant him any more than visitation at this point.
Child support should be determined in NC as he, the payor, lives there. As for custody, since one party is still in NC, jurisdiction is technically still proper here, but since you and the child have lived elsewhere for 3 years you may make a motion in NC to have this state relinquish jurisdiction to your state.
There is no default awarded in custody cases.


#3

Erin, I am confused by your response. Child support was the only case help in NC and it was finally done after I had moved out of the state of NC. There was no custody or visitation ever set up because he never wanted anything to do with our child. When I was told he was filing papers for full custody, I went ahead and did it in my state that I live in. He was served my papers that were filed. He did not respond in the 30 days. I got a phone call yesterday saying that he has hired an attorney here and is wanting to squash my order because since there is a child support case in NC, NC has Jurisdiction. I have lived in this state for almost a year now. How would NC has jurisdiction over custody and visitation when there was no case ever opened for it?

I was told by NC child support that since the NCP lives in NC that child support is held where the father lives. They do not deal with custody and visistation. They have child support based on me having my child 100% because he wanted nothing to do with her. We have mediation next month, and a court date already set. Are you telling me, that NC has jurisdiction because of a child support case? Also, that the 6 months living in a different state doesn’t matter? Please help me understand this.


#4

What Erin is saying is that whatever state the person who is paying child support lives in…that is the proper state to file for child support. So, if he moves to Alaska, then Alaska would be the proper state to seek child support.

Child support has nothing to do with visitation.

My own notes… (I am not a lawyer…)

Child custody jurisdiction is determined by UCCJEA (Uniform Child Custody Jurisdiction Enforcement Act, I believe is what it means…). Basically that says that child custody jurisdiction is determined by where the child lived for the 6 months preceeding any child custody action being filed. Your post is a bit confusing, you say that you moved to the west coast at the beginning of this year…but that you moved out of NC over 6 months ago?

If you have been in your new state for over 6 months before you filed any action for custody (and he had not filed any action either), then I believe that your current state should have jurisdiction. However, since the child was born in NC, and the father still lives in NC, that would be why NC could still technically have jurisdiction…because the father never moved out of the state. Although I would argue that per UCCJEA, you and your child have lived elsewhere for over 6 months preceeding the filing for custody. That should make it a no-brainer.

I would motion for NC to relinquish their jurisdiction to your new state…and they will likely do it (and gladly)…

Search UCCJEA and read up on it as well.


#5

Thank you so much for explaining that to me.

Explain for the ‘over 6 month - almost one year’… The laws in all states when jurisdiction is involved is 6 months. So when I was saying over 6 months I was meaning it in that term. I have lived on the west coast since 03/2010, so it has almost been 1 year. Again, thank you for explaining that to me. I do on the other hand have another question.

The father has gotten an attorney here in my state to squah my request for my state to have jurisdiction and he has stated in his statement of a court case number that I have no knowledge of. I know of one case number and that is on the child support case which is through the child support division because I had my child on medicaid and the father is to be placed on there (by law). I know he has known my address because in the paperwork (my attorney has), he has my address and when I got to my address. So if there was a case opened and I wasn’t notified of this case, didn’t his attorney and he do something illegal? Futhermore, I need to be served on this so called case that is there in NC, correct? If I had him served before I was served, doesn’t my case take presidence over his?

Thank you again for being so kind in answer my questions.


#6

His attorney did not do anything illegal, but you must be served with any paperwork they have filed. The case that was filed first should be the case number under which the other action will be consolidated.


#7

If he was served my paperwork first, wouldn’t I have the upper hand? He hired an attorney here in my state and wants to squash my court order. If there has never been a custody order in place, wouldn’t my state have jurisdication?


#8

The state where the children live has jurisdiction. The actual timing of filing does not give either party the upper hand.


#9

I am just trying to clear come confusion up. Thank you Erin.

Another question: If a child support case was opened up in NC due to child being on medicaid (DCSS opening the case) and that is the only case that was held in the NC courts, does that give NC jurisdiction? The NCP finally allowed the courts to know that he was the father.

  • Does the Child support case place NC having jurisdiction if I moved 3 more prior? If I understand the laws correctly, child support is held in the state where the father lives.

There has never, ever been a custody case done with my child with the NCP except the paperwork I filed here in California and we served him. He did file paperwork in NC but I got served two weeks after he was served with my custody paperwork. I would like to get a clear picture of what I am going to have to deal with in court on this situation.

Thank you so much!


#10

Yes, jurisdiction for CS is proper where the NCP payor lives.