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Ok, so for those of you new to the case or need a refresher, look [URL=http://forums.adoption.com/showthread.php?t=193827]here[/URL], [URL=http://forums.adoption.com/showthread.php?t=157070]here[/URL], and [URL=http://forums.adoption.com/showthread.php?t=187177]here[/URL].
Now, I know I have gone over this with some of you guys before but now that we have an actual motion, we can see what we are defending against.
Here are the contents w/ names and case #'s removed to protect the innocent, and not so innocent :)
In the matter to declare, Jane Doe, )Case: CAL_BLAH
a female minor, freedom from the )
custody and control of her father, )
John Doe, pursuant to family code )Motion to Dismiss
section 7822. )Motion to Transfer
_______________________________________________
The respondent, John Doe, respectfully moves this court for an order dismissing this matter due to the fact that jurisdiction has been established in Juvenile Court Division of Some County, Ohio Court of Common Pleas Case No. OH_BLAH.
In the alternative the respondent would move for an order transfering or staying this matter until transfered to the Juvinile Court of Some County of Common Pleas Case No. OH_BLAH.
Attached hereto please find a copy of the Declaration of John Doe, a copy of the Judgement Entry in Case OH_BLAH and copy of the currently pendint motion for contempt.
The respondent states that the petitioner has wrongfully withheld control and visitation from the respondent. As such this Court lacks jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act 28 USC Section 1738A, also CA Family Code 3400 et. seq. and OH Revised Code Section 3109.21 et. seq.
_______________________________________________
So are my arguments against this.
For dismissal he states: "The respondent, John Doe, respectfully moves this court for an order dismissing this matter due to the fact that jurisdiction has been established in Juvenile Court Division of Some County, Ohio Court of Common Pleas Case No. OH_BLAH."
The only case out there is a custody case, and while ohio may have jurisdiction over custody issues, this is not a custody issue. Codes and examples below illustrate this point.
Since he stated: "The respondent states that the petitioner has wrongfully withheld control and visitation from the respondent. As such this Court lacks jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act 28 USC Section 1738A, also CA Family Code 3400 et. seq. and OH Revised Code Section 3109.21 et. seq."
The sentence "As such ..." infers that since we "wrongfully withheld control and visition..." he has reason to use the following laws.
So, my thinking is that if we prove that we did not infact did not with hold control and visitation from him, he cannot make use the rest of the sentence to argue his point.
Also, Uniform Child Custody Jurisdiction Act 28 USC Section 1738A does not exist. USC 28 1738A exists, but not UCCJA 28 USC Section 1738A.
Also against USC 28 1738A.
(c) A child custody or visitation determination made by a court
of a State is consistent with the provisions of this section only if -
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(C) the child is physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because the child, a sibling, or
parent of the child has been subjected to or threatened with
mistreatment or abuse;
What we are proving here is that they have been abandoned.
Also, CA Family Code 3403 states it it does not govern adoptions. And therefore should not have any effect concerning the Freedom from control and custody case, due to the fact that this is a part of the adoption preceding.
My arguments that this state has proper jurisdiction and venue are the following:
California Family Code 3403 states (RE: Custody Matters):
This part does not govern an adoption preceding or a preceding pertaining to the authorization of emergency medical care for a child.
California Family Code 200 states (RE: Jurisdiction):
The superior court has jurisdiction in proceedings under this code.
California Family Code 9000 (a) states (RE: Adoption):
A stepparent desiring to adopt a child of the stepparent's spouse may for that purpose file a petition in the county in which the petitioner resides.
California Family Code 7845 (a) states (RE: Freedom from Parental Custody and Control):
The county in which a minor described in Chapter 2 (commencing with Section 7820) resides or is found.
Therefore, the Superior Court of Alameda has the proper Jurisdiction and is the proper Venue for this case.
Please comment on them, give me any feedback possible. Thank you
Now, do I need to put all of this in a motion or in a declaration, response to motion, or something else? If it put it in a motion, what would I call the motion?
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Were you getting a check for the child support or was it used to pay back the state? if it was used to pay back the state esentially he has not paid child support. I was looking back at the case and I realized you said he had a drug problem and everything else. You also said he incriminated himself to the social worker. Due to the fact that the judge does not have all the time in the world to investigate these cases he sends a helper. This helper is the social worker. The social worker does not lie and just states the facts. I would not worry about the whole getting the abandonement granted. whether it is ohio or california saying he has inddeed abandoned them, he did. That is a proven fact. Now I did notice that in ohio you are required to get a lawyer. But it will work out anywhere, if you do have to transfer back to ohio. The fact still remains he abandoned the children and you have been taking care of them. I would focus more on the part of the motion where he is trying to move the adoption case into the wrong court and somehow he believes that both the cases should be combined. He is trying to prolong it and I would plead with the judge to just make a ruling on the case in california and make sure to state benifits that would coincide with the keeping it here. As far as the terms go, I would leave that one alone. They are the same phases. All You can really do is wait until the hearing and see how it goes. You never know, He might not even show up to the hearing. HE may forget or have a hard time getting here. He is claiming that these hearings are a inconvience to him, yet his convience is not to be honored. Its like a criminal whom commits a crime, Do you think the judge is going to do everything in their power to make it convinemt on their part. He is the defendant, you are the petitioner you have more say.
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Could the fact that the name of the proceedings "Freedom from Custody and Control" and not "Termination of Parental Rights" help to keep it out here. Everything I see for other states and custody issues deal with "Termination of Parental Rights" and not "Freedom from Custody and Control" even though they are essentially the same thing?
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He had our phone number the whole time, they moved a couple times in the same area but had the same number the whole time. In fact, he only didn't have the last address before our marriage, but they still had the same phone number. Then after we got married and moved one last time, we updated him to our new address/phone number. Child support also had our address the whole time, every time we moved.
There's your argument.
1. You state how long you have all lived here.
2. How long he knows you have lived here.
3. That he had your contact information.
4.That he had a visitation order but never excersised it.
5. That as residents of the state of California, and the allegations made in your petition having occured in California, you filed in California because they have jurisdiction over these termination proceedings.
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Ok, so I should just not cite any CA Family Codes and let the judge decide which is correct? I can do that. I'm sure the judge will know/study up on all the jurisdiction stuff before the next court hearing, so I guess we just state the reasons we filed here and hope they are the right reasons and that it stays out here.
I mean I could bring up all the family codes but I'm sure the judge already knows them. Maybe I'll just bring them for my reference incase he wants specifics.
Worst case scenario, it goes to ohio. There is no need for a termination hearing in ohio, we just have to prove he could have contacted the girls but choose not to. The only thing is my wife knows the judge and he didn't like her the last time she was out there. Although he really doesn't like the BF, the Ohio judge see's the bf and his family all the time and really doesn't like them. And by allowing the adoption would be best for the children and the judge would never see my wife again. The only things that worry me about ohio is 1) the judge and 2) the fact that since these proceedings were brought out here, he has since contacted the children. As long as the dates in ohio reflect the time of the original petition, in CA, then I think we are cool and do not need his consent.
I guess I just need to hang back and see what happens before I blow a vein in my head and fail all my classes. This is really difficult because I am used to having all the info before I go into something like this.
You can have the codes on a seperate piece of paper handy so that they are there if you need them.
Also, write everything you want to say or need to say down and bring them into court with you. Take notes of what the other side is saying too.
I know that when I went to court the baliff thought I was an attorney because I was dressed in my best and so well prepared. I had every piece of paperwork in a binder in chronological order with color coded tabs so I could find it right away. I had a legal pad with all the things I wanted to address or felt I would need to address written down. I also printed out California codes and even a couple of cases and highlighted the pertinant parts. You want to be well prepared and organized...it helps keep your head together when your nervous. His attorney will cut you no slack just because your representing yourself. In fact I felt like I got dealt with harder...it may have just been my nerves but that is how it felt.
I also got myself a law dictionary. I have a Black's Law Dictionary 7th edition. I looked up all the legal terms I was unfamiliar with and made sure I understood the definitions. I actually ended up getting tons of law books during the time when we went through our adoptions. I have several on legal research and writing and argumentation. They do help.
Just be sure your organized and have anything you think there may be the slightest possible need for, readily accessible and available. Now I ended up not needing 95% of the stuff I brought...but I was sure glad I had it because I had no idea what they may throw at me in there and I wanted to be as prepared as I possibly could.
Thats what I am having problems with, not being prepared for the jurisdictional stuff. Everything else I have a pretty good handle on, its just the jurisdiction stuff. BTW, he is not represented out here, only in Ohio.
I think I can have his motions dismissed for a few different reasons, but I think some of them would be w/o prejudice, which means he could just refile them and it would take longer. But there are things in there that are completely wrong, so I am kinda up in the air about what to try to get dismissed.
However, at the last hearing I overheard him say he didn't have much vacation left, so I am thinking we can burn a little bit of time here and there and he eventually won't be able to make it to a hearing. Only down side to that is summer is rapidly approaching and therefore so is his visitation time.
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I would not dismiss anything. All the evidence can be used against him and I would allow the judge to look at it. Are you sure the judge in ohio is the same as the custody. Out here they are two differant judges. They also think differantly. I had a hard time with the judge in my child custody case, yet that does not reflect my adoption case. The judge was getting tired of seeing me also, yet he still would not grant a stay for the custody. which looking back now, he knew the bio dad would not stay long. IF you try to burn a little time you can go to ohio and say you have an adoption case pending and you want to stay the custody case pending the results. The judge for adoption will see that he is only trying to be involved because he knows about the adoption. You have a prettty good case on why the case should stay out in california. I was not aware that you had been here so long. I thought it was a recent move. The bio parent is getting you exactly where he wants you, all worked up. The lawyer he has in ohio more than likely only knows the laws in ohio. He may be claiming that you are in the wrong jurisdiction, and maybe you are according to ohios state laws. However you are in california and california is not going to adopt ohios laws for this case. They are going to state you are a resident of california. Worst case senerio, there will be another continuation and he will not make the hearing and deal with the case in ohio and try to change venue and then do to a conteversuy you have the right to keep the kids until the custody courts decide. You are pretty far in the process to not get a judge to look and say this is on the verge of going through or I really am tired of hearing this case I will grant the transfer to california, all the while this is buying you more time on him actually seeing the children. OD you get what I am saying. I know I can be confusing at times. Like with my child custody case, the bio parent has no clue he is about to get his parental rights severed. So in a year when he decides to jump back into the picture and file a motion to see his daughter once again, I will ignore the court date and when he knocks on the door with a police officer, I will show them he is no longer her father. I have my reasons for doing it that way. But the bottom line is they can not force me to do anything because the granting from the probate dept takes precedent over the custody issue.
As far as the judges being the same, yes, the Family Judge is the same as the Probate/Juvenille Judge. Ok well then I will just leave it to the hands of the judge to make the right call. And will simply present him with all the evidence needed to sever his parental rights. Thanks again everybody. I will let you all know after May 16th what happens.