Where Do I File a Motion to Change Venue for Child Custody?

07/27/2009 - Category:Divorce - Modification - State: TX #17820

Full Question:

I need to transfer custody jurisdiction from CA to tx where me and my daughter have been residents for the past 2 yrs. I need to know which state to file in and which forms to file. There was a stipulation for modification of child support and visitation in 2007 done by my ex which he pays no support or health insurance and she has the right to choose residence. He is currently holding her against her will in CA and is threatening to keep a court ordered stay on her in CA pending a new custody suit. I can't afford to keep coming back to ca. I will lose my job. I am currently in ca. preparing to retrieve my daughter w/ law officials per the existing agreement. I cannot afford an attorney. please help.

Answer:

Venue is the local area in which a court, that has jurisdiction, may try a case. Jurisdiction is the geographical area within which a court has the right and power to operate. A court system may have jurisdiction to take a case in a wide geographical area, but the proper venue for the case may be one place within that area for the convenience of the parties. Jurisdiction is subject to fixed rules; however, venue is often left to the discretion of the judge. The first state to impose a custody order retains "continuing exclusive jurisdiction" as long as one of the parties continues to reside in that state or if both parties agree to transfer jurisdiction to another state. Another state may modify the decree only if the original state no longer has jurisdiction over the case or has declined jurisdiction to modify the decree. Under the former Uniform Child Custody Jurisdiction Act (UCCJA), "[a] court which has jurisdiction [to modify a decree] may decline to exercise its jurisdiction . . . if it finds that it is an inconvenient forum . . . and that a court of another state is a more appropriate forum." In making a determination on whether a change of venue motion should be granted, the judge will consider things such as: • Where each party lives; • Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child; • The length of time the child has resided outside the state; • The distance between the court in the state and the court in the state that would assume jurisdiction; • The relative financial circumstances of the parties; • Any agreement of the parties as to which state should assume jurisdiction; • The nature and location of the evidence required to resolve the pending litigation, including testimony of the child; • The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and • The familiarity of the court of each state with the facts and issues in the pending litigation. • Any other things that the judge thinks are important When a divorce decree is issued by a court, that court retains jurisdiction to modify its order. A court may grant a motion for a modification of a divorce decree when the parties consent to the modification or when a significant change of circumstances justifies the modification. Certain aspects of the decree are modifiable, while others are not. The property division is not modifiable by the court. It is final. Child custody may be modified if there is a significant change of circumstances. The court's decision to grant a modification is based on the best interests of the child. A motion and petition are generally the same thing, they are formals requests to the court for something. If granted, the court will issue an order. When the order is made, the requests in the motion/petition become enforceable. We can assist you with searching to locate forms or we can draft add forms you may need to our database. However, we cannot advise you to use one particular form over another that address the same matter. We can show you what is available. You can take a look at the forms below and see if they fit your need. If they do not, let me know and we may be able to add a form for your need. You may order a form or package by phone by calling Toll Free: 1-(877) 389-0141 - 8:30-5:00 Central Time Zone Monday – Friday. The following are CA statutes: 3422. (a) Except as otherwise provided in Section 3424, a court of this state that has made a child custody determination consistent with Section 3421 or 3423 has exclusive, continuing jurisdiction over the determination until either of the following occurs: (1) A court of this state determines that neither the child, nor the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child's care, protection, training, and personal relationships. (2) A court of this state or a court of another state determines that the child, the child's parents, and any person acting as a parent do not presently reside in this state. (b) A court of this state that has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under Section 3421. 3427. (a) A court of this state that has jurisdiction under this part to make a child custody determination may decline to exercise its jurisdiction at any time if it determines that it is an inconvenient forum under the circumstances and that a court of another state is a more appropriate forum. The issue of inconvenient forum may be raised upon motion of a party, the court's own motion, or request of another court. (b) Before determining whether it is an inconvenient forum, a court of this state shall consider whether it is appropriate for a court of another state to exercise jurisdiction. For this purpose, the court shall allow the parties to submit information and shall consider all relevant factors, including: (1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child. (2) The length of time the child has resided outside this state. (3) The distance between the court in this state and the court in the state that would assume jurisdiction. (4) The degree of financial hardship to the parties in litigating in one forum over the other. (5) Any agreement of the parties as to which state should assume jurisdiction. (6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child. (7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence. (8) The familiarity of the court of each state with the facts and issues in the pending litigation. (c) If a court of this state determines that it is an inconvenient forum and that a court of another state is a more appropriate forum, it shall stay the proceedings upon condition that a child custody proceeding be promptly commenced in another designated state and may impose any other condition the court considers just and proper. (d) A court of this state may decline to exercise its jurisdiction under this part if a child custody determination is incidental to an action for dissolution of marriage or another proceeding while still retaining jurisdiction over the dissolution of marriage or other proceeding. (e) If it appears to the court that it is clearly an inappropriate forum, the court may require the party who commenced the proceeding to pay, in addition to the costs of the proceeding in this state, necessary travel and other expenses, including attorney's fees, incurred by the other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.

Please see the information at the following links: http://definitions.uslegal.com/m/modification-of-divorce-decree/ http://definitions.uslegal.com/c/change-of-circumstance/ http://definitions.uslegal.com/c/change-of-venue/ http://definitions.uslegal.com/v/venue/ Please see the forms at the following links: http://www.uslegalforms.com/us/US-00936.htm http://www.uslegalforms.com/us/US-MOT-01409.htm http://www.uslegalforms.com/us/US-00901BG.htm

07/27/2009 - Category: Modification - State: TX #17820

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