How Do I Change the Court Location in a Child Custody Case?

Full Question:

I am the defendant in a joint child custody and visitation case. The case is set to be heard in Newton County Georgia next week. However, although I am a native of Georgia, my daughter and I have NEVER lived in Newton County. Her father, whom I was never married to, is the only one who has ever and currently continues to reside in Newton County. This petition was filed in 2009 when my daughter and I were residents of North Carolina for seven months (November 2008- June 2009). I was served the summons papers in June of 2009 in North Carolina by the On slow County Police. According to my research, we were officially residents of NC after living, working, and going to school there for 6 months. But my 10 year old daughter and I now live in Woodbridge, Virginia (Prince William County) and have been for a year and seven months. I believe this case should be heard in another court/ county. I believe it was filed in the wrong court/ county from the moment he initiated this petition. With all this being said, How do I legally make a request for proper handling/ venue/ jurisdiction of this case which best suits the interests of my daughter and me?
04/21/2011   |   Category: Venue   |   State: Virginia   |   #24695

Answer:

If this is related to a previous case, typically, when there is a custody case, the court that issued the original custody/visitation order retains jurisdiction to hear future disputes, such as a modification or charge or violation of the custody/visitation order, regardless of where the parties later reside.

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.

Venue is the legally proper or most convenient place where a particular case should be filed or handled. Every state has rules determining the proper venue for different types of lawsuits. Normally, the venue in a criminal case is the judicial district or county where the crime was committed. The state, county or district in which a lawsuit is filed or a hearing or trial in that action is conducted is called the forum. For various reasons either party to a lawsuit or prosecution may move (ask) for a change of venue, which is up to the discretion of a judge in the court where the case or prosecution was originally filed. Reasons for such a request may include a clause in a contract stating that any action must be brought in a certain other venue, or pretrial publicity may be claimed to have tainted the potential jurors in that venue from rendering an impartial judgment. Difficulty in obtaining competent representation is generally not a reason to support a change of venue.

Where to file will depend on where defendant resides or conducts business, and the dollar limit of the local small claims court. Venue is typically proper where the defendant resides, conducts business, where a contract is formed, where an accident occurs, or where the contract provides for the case to be brought. Typically, a defendant needs to have minimum contacts with the forum to pass due process requirements for being served with a complaint. Due process requires it to be reasonably foreseeable that a person would be called to defend in that court.

In personam jurisdiction is obtained when the respondent/ defendant is properly served with a summons and complaint either by certified mail, by personal service, or by publication (only rarely used and only when the address of the respondent/defendant is unknown). An out-of-state defendant may be served with the complaint under a state's long-arm statute if the requirements for exercising long arm jurisdiction and due process requirements are met. If the defendant is out of state, due process requires that they must be shown to have contacts in the forum state of such a nature that they could reasonably foresee being sued in that state. Whether minimum contacts exist so that the court has personal jurisdiction over an out-of-state defendant is a determination made based upon the facts and circumstances in each case. Minimum contacts can be established by consent where a party signs a contract with a forum selection clause, agreeing to litigate in a specified forum. If minimum contacts don't exist, the defendant must be sued in the state where they reside or regularly conduct business.

In order to serve a defendant with the state's long arm statute, the defendant must have minimum contacts with the state. Minimum contacts can consist of either some type of systematic and continuous contact with the forum ("general jurisdiction"), or isolated or occasional contacts purposefully directed toward the forum ("specific jurisdiction"). A single contact can suffice to establish personal jurisdiction, but where jurisdiction is based on a single contact, the nature and quality of the contact is determinative. The principal test of foreseeability in a due process analysis "is that the defendant's conduct and connection with the forum state are such that he should reasonably anticipate the possibility of defending a suit in the forum. Ownership of property in the state may satisfy this requirement.