Jurisdiction and The Consent Decree
Here is a status update for this post from August. No child support yet and it is now November, we’ve just celebrated Veterans Day and my attorney is trying to schedule a phone mediation around Christmas because that’s what’s required before the judge orders child support. What agreement are we supposed to come to in mediation, when he has done everything in his power not to pay his fair share, and he has jeopardized his own child’s future in the process?
My ex-husband has had the same cell phone number for 6 years, plus he has the same phone number in Germany whenever he’s stationed there. I gave both numbers to my lawyer to pass along to my ex’s lawyer who says he only communicates with his client by email. Mandy’s dad lived all by himself in a 3-bedroom townhouse after we got divorced, and cheekily insisted that our Divorce Decree clearly stated he didn’t have to pay child support. Meanwhile, Uncle Sam’s been feeding Mandy’s dad and paying his rent and utility bills and would have paid his child support, too, on top of his salary and combat and signing bonuses, but just to be spiteful, Mandy’s dad made us go without while I’ve gone begging to 3 different states over the past 4 years, running up bills paying attorneys who victimized me because they saw me as weak and needy and unable to fight back. As most people could plainly see, mediation is a joke, and on top of it, I’m told the mediation process will cost me several hundred dollars over and above my attorneys’ fees, but there are bills I will have to forego paying in the interest of getting what Mandy’s dad should have been giving us all along.
We are not the only ones suffering this holiday season. I attached a link to a PBS documentary on children living in poverty in the US and a new White House petition to return deadbeat soldier dads stateside for their child support hearings. Don’t worry, I’m not soliciting donations, but please consider signing the petition this Thanksgiving weekend. America’s struggling single mothers count on your support.
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My ex-husband and I have been members of The Church of Jesus Christ of Latter Day Saints. He grew up in the church, his mom and dad (still married) are Temple workers, and it never occurred to me that he would use a lawyer to keep from supporting his child when she was in my care, or that his parents and his church would support his choice not to do so. The incidents within and surrounding this story are true, and have roots in legal cases, open and closed, in three states.
The following quote comes from No Service, No Divorce Case: Establishing Jurisdiction and Effecting Service of Process, by Marion J. Browning-Baker, published online in the American Bar Association’s Law Trends & News Practice Area Newsletter in 2009:
Although a comprehensive look at child custody jurisdiction is beyond the scope of this article, the following are some common pitfalls to avoid.
- One may not bootstrap onto the parent’s state of legal residency. A military parent’s domicile in Ohio does not give Ohio jurisdiction over child custody.
When I started writing this post on July 17, Mandy’s dad had just flown in from Germany to take his daughter to his mom and dad’s in Utah for his 3 weeks of summer parent time. I brought her to the airport hotel along with her suitcase and a surprise for her dad. During our little meeting in the hotel lobby, I showed him a packet of legal documents I’d compiled from a huge looseleaf binder I received in June. The packet included my ex-husband’s Affidavit stating that his parents in Utah were our child’s legal guardians until age 18, his attorney’s claim that they should have been parties to my suit demanding custody and child support, two corresponding pages of our Divorce Decree (the only document I knew of discussing custody of our child that had been presented to a judge), and his Officer Record showing his last five duty stations, all of them in Texas. My ex-husband did a double take when he saw that, exclaiming “how did you GET THIS?”
My ex-husband is an active-duty soldier. Due to an imbalance of financial resources that began when he forced me to give up my career shortly after I married him, he is the one who has the steady paycheck, he is the one who chose jurisdiction because I was in the middle of nowhere when we got divorced and I wound up on the street, and he is the one rich enough to afford a lawyer. We lived in Maryland at Fort Meade throughout our marriage and at the time of our divorce, but I had no family there. I graduated with my BA and moved to Rochester, New York 18 months after our divorce was final, where I live to this day. Our daughter came to live with me a year later. Her daddy’s strategy for avoiding custody and child support hearings since then has been to make me play a confusing and expensive shell game of trick-or-treating from state to state seeking a forum. At the time our divorce was going through, my ex-husband told me he was generously “paying my share” of child support for Mandy to his parents in Utah, who cared for our daughter so I could finish my Bachelor’s Degree. I asked him if there were court documents concerning child support owed to his parents because I wanted to see how they calculated payments, but he quickly told me that there was no documentation since it had been arranged informally “in front of a judge.” (Obviously, six years later I know that there are no informal arrangements in front of a judge!)
When my Texas attorney’s staff asked me about a child support order, I suspected there might be one, though I had been told by ORS that it didn’t exist, but I didn’t get a copy of it until my Texas case was nonsuited and my ex-husband’s Utah attorney had to answer a brief I filed pro se over a year later. Naturally one of the questions I asked Mandy’s dad in the hotel lobby July 17 was whether there was a court order floating around having to do with his parents and legal guardianship of our daughter. He assured me there was none. I guess I believe him.
In 2009, after many months of contacting child support collection agencies in 3 states and discussing my situation with attorneys in New York, Texas and Utah, I chose to serve Mandy’s dad in Texas where he was working. My carefully-selected attorney never spoke to me again after I paid his retainer. He wrote me a terse note after 14 months stating that my ex-husband’s state of legal residence was Utah, as though answering that simple question was somehow worth $4,000 after my lawyer had churned out a Rule 194 Request For Production that didn’t ask for Leave and Earnings Statements or other relevant documents, and went essentially unanswered. After reviewing the files two years later, I discovered that my lawyer had negotiated with the other lawyer to nonsuit the case based solely on my ex-husband’s W-2s. It didn’t become clear to me until I read through his binder last month that my lawyer never intended for me to get sole custody or child support. Instead, he led me to believe my case had been heard and dismissed, then Nonsuited my case after more than a year without explaining that it was Mandy’s grandparents’ legal residence and not her father’s that the two lawyers had used to determine jurisdiction, excluding the judge from their decision entirely. After that, my lawyer’s firm sent me tons of referrals to Utah lawyers, but I had an extraordinarily difficult time finding a lawyer who could take my case, since jurisdiction was not in New York, even though that’s where the child has lived since 2008, it was not in Utah because no legitimate parties to the suit resided there, and it was obviously not in Texas.
To readers who aren’t practicing lawyers, it may not be readily obvious that even though they both require a judge’s signature, a Divorce Decree differs from a court order in that it is a voluntary agreement made between two parties before a judge. In the affidavit my ex-husband drafted for the court with the help of his Texas lawyer, he claimed our Divorce Decree was a court order giving his parents legal guardianship of our daughter for the first 18 years of her life. In actuality, our Divorce Decree gives my daughter’s father and me joint custody and simply states that we reserve the right to let his parents care for her on a temporary basis, permitting them to care for her until age six, or until one of us revokes our consent. (I revoked my consent after only two years because Mandy’s dad and his parents’ standing pattern of making choices for my daughter without my knowledge and telling me after the fact effectively left me out of the parenting process. Grandma also routinely interfered with my phone visitation. When, just after my daughter’s 4th birthday, I insisted that Grandma let me speak to my daughter once a day on a cell phone I had purchased for her, Grandma got angry and threatened to sue for custody at the top of her voice right in front of Grandpa, Mandy’s dad and Mandy herself, who found the scene very disturbing.)
“You broke our Agreement,” he said, meaning the Divorce Decree. “Mandy lives with you on the condition that you don’t get child support, you should know that.” He threatened to send his mom on the plane to come and get her. I told him that was NOT what I agreed, and that he needed to stop sending me flowers on Valentine’s Day and not to send any on Mother’s Day, either. The subject didn’t drop. Weeks later, he told me his Air Force buddy’s wife was driving home from Canada and that I should pack up all Mandy’s belongings and put her in the car. I began to feel threatened. So threatened that when my Texas attorney refused to address my concerns, I contacted a New York attorney who told me to withhold visitation and let my ex-husband sue. What happened after that you’ll have to read in a later post (it involved a road trip and eventually my getting my hands on the Imputation of Wages that was the basis of child support Mandy’s dad paid to his parents).
But before I conclude, let me say also that something had been going on at summer day care in Texas that led me to file a restraining order in New York in 2011, and now his summer parent time really is Parent time, not time where he ditches her near his house and goes to work every day like usual. It was expensive, but it was progress.
On August 3, 2012, Mandy’s dad returned Mandy safely to Rochester and was served a summons for a child support and custody hearing in the State of Utah. We’ll see how it goes.