I am a mother of a three year old child who father filed for divorce while living in cali but it was never finalized before he moved back to idaho about three months ago...he had take full custody and I would like to talk to someone about my rights a ...

Submitted by ashleyarmstrong on

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I am a mother of a three year old child who father filed for divorce while living in cali but it was never finalized before he moved back to idaho about three months ago...he had take full custody and I would like to talk to someone about my rights as his mother to get partial custody back so he can have a safe and sober living environment which he is currrently not being provided with living with his father. he doesnt even have his own room and shares a bed with his father...please someone get in contact with me on my rights to geet my child back ..thank you. Ashley Armstrong 208-867-2741

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DakotaLegal's picture

 

Submitted by DakotaLegal on

 
The first crucial fact is to decide where you want to fight the custody battle. I’m not sure, for example, if you’re in California or Idaho. I assume you are now both in Idaho, since you indicated that he moved “back” to Idaho…presumably, where you are located. Let’s look at that issue of residence first, and it’s called jurisdiction. I’m going under the assumption you prefer Idaho, and that has several advantages for you if that’s your home state. To see about affordable legal help, check here: http://idaholegalaid.org/.
 
What Court Has Jurisdiction?
 
Generally, just being present in a state gives a state some interests in the child’s custody case. This could be a matter only of safety, or go much deeper. We talk about the ability of a state to make decisions about a family and child custody in terms of jurisdiction of a court. Here’s a way to check what court you need to talk with… http://www.court reference.com/Idaho-Courts.htm.
 
Assuming you’re in Idaho right now and so is your son, you have a good claim at getting an Idaho Family Court judge to exercise jurisdiction. A good rule of thumb, if more than one state may get involved, is “first in line, first in time.” If you want to fight for custody in Idaho, file there right away….no matter where the child is. There are other “fact” patterns that help a court exercise jurisdiction too. Prior contacts with the state can be important. Any other family members in the state, or where he has attended any types of school (including pre-school), where are his medical providers, and where was he born? You mentioned risk to the child, and any crime being committed gives a state jurisdiction.
 
What Rights Do You Have?
 
It would be nice to know how the father first gained custody or control of the child to go to California. It’s not clear the father was ever awarded custody from a court. Without an order of some kind, each parent has power to tug a child back and forth…a terrible situation and why it’s vital to start a formal legal process. Very often, one parent may be having troubles in keeping a residence, and the other parent may simply take control of a child. This leads to complications about jurisdiction, because one parent may simply take the child and move. Here’s a not uncommon example of what happens:
 
EXAMPLE: A couple, no longer living together or working together as a family, begins to dispute about with each other, and then spills into their child (ren’s) care. Before either party files for divorce, one takes the child and simply moves to another state. Depending on the state, they can file for divorce and custody in that other state. The other spouse (the left-behind parent) files for custody in the prior state. Both states will schedule a custody conference to determine which state has jurisdiction. If the custodial parent manages to establish a case of abuse (true or not, it’s used in more than half of all contested cases), they will probably not be ordered to bring the child back to the other state. In such a case, the only practical option is for the non-custodial parent to go to the new state of residence and fight for custody there.
 
This example is only one way a custody fight across state borders can play out. I mention it because I want to encourage you to immediately go to a free legal aid clinic and/or the local family court and begin either a formal legal separation or a divorce with a custody proceeding. Take a look at the self-help forms you can use…http://www.courtselfhelp.idaho.gov/. Until there is a court order, both parties have the same basic right to physical custody of the child…and this often leads to the party who is most willing to ignore the child’s best interests getting into a superior bargaining (though unfair) position.

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DakotaLegal's picture

 

Submitted by DakotaLegal on

 
The first crucial fact is to decide where you want to fight the custody battle. I’m not sure, for example, if you’re in California or Idaho. I assume you are now both in Idaho, since you indicated that he moved “back” to Idaho…presumably, where you are located. Let’s look at that issue of residence first, and it’s called jurisdiction. I’m going under the assumption you prefer Idaho, and that has several advantages for you if that’s your home state. To see about affordable legal help, check here: http://idaholegalaid.org/.
 
What Court Has Jurisdiction?
 
Generally, just being present in a state gives a state some interests in the child’s custody case. This could be a matter only of safety, or go much deeper. We talk about the ability of a state to make decisions about a family and child custody in terms of jurisdiction of a court. Here’s a way to check what court you need to talk with… http://www.court reference.com/Idaho-Courts.htm.
 
Assuming you’re in Idaho right now and so is your son, you have a good claim at getting an Idaho Family Court judge to exercise jurisdiction. A good rule of thumb, if more than one state may get involved, is “first in line, first in time.” If you want to fight for custody in Idaho, file there right away….no matter where the child is. There are other “fact” patterns that help a court exercise jurisdiction too. Prior contacts with the state can be important. Any other family members in the state, or where he has attended any types of school (including pre-school), where are his medical providers, and where was he born? You mentioned risk to the child, and any crime being committed gives a state jurisdiction.
 
What Rights Do You Have?
 
It would be nice to know how the father first gained custody or control of the child to go to California. It’s not clear the father was ever awarded custody from a court. Without an order of some kind, each parent has power to tug a child back and forth…a terrible situation and why it’s vital to start a formal legal process. Very often, one parent may be having troubles in keeping a residence, and the other parent may simply take control of a child. This leads to complications about jurisdiction, because one parent may simply take the child and move. Here’s a not uncommon example of what happens:
 
EXAMPLE: A couple, no longer living together or working together as a family, begins to dispute about with each other, and then spills into their child (ren’s) care. Before either party files for divorce, one takes the child and simply moves to another state. Depending on the state, they can file for divorce and custody in that other state. The other spouse (the left-behind parent) files for custody in the prior state. Both states will schedule a custody conference to determine which state has jurisdiction. If the custodial parent manages to establish a case of abuse (true or not, it’s used in more than half of all contested cases), they will probably not be ordered to bring the child back to the other state. In such a case, the only practical option is for the non-custodial parent to go to the new state of residence and fight for custody there.
 
This example is only one way a custody fight across state borders can play out. I mention it because I want to encourage you to immediately go to a free legal aid clinic and/or the local family court and begin either a formal legal separation or a divorce with a custody proceeding. Take a look at the self-help forms you can use…http://www.courtselfhelp.idaho.gov/. Until there is a court order, both parties have the same basic right to physical custody of the child…and this often leads to the party who is most willing to ignore the child’s best interests getting into a superior bargaining (though unfair) position.