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Leslie D.
Leslie D., Family Law Attorney
Category: Family Law
Satisfied Customers: 201
Experience:  Experience in family law, abuse and assault victim advocate
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My sons father and I were never married. My

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My son''s father and I were never married. My son was born in the state of Wyoming. When my son was 6 mos old (he will be a year on the 10th of this month), his father walked out on us. I moved with my son to Minnesota. Minnesota law states that I have full custody and that he has no rights other than to pay child support. Wyoming law is more dingy. Which state maintains jurisdiction over the child custody issue, does he have a right to bring a child custody case in Wyoming when we have been residences of the state of Minnesota for 6 mos?
Submitted: 6 years ago.
Category: Family Law
Expert:  Leslie D. replied 6 years ago.

HelloCustomer

Is there a current child support and/or custody order in place? If so, which state issued this order? Has any petition for modification been filed? If so, where has the petition been filed?

If you can answer these questions, I will be able to provide you with a more complete answer.

Thanks,

Leslie

Customer: replied 6 years ago.
Reply to Leslie D.'s Post: There is no signed order in either state, although there is an action in Wyoming. Minnesota is now also stepping in and will interface with Wyoming for me (my son). There is no custody order anywhere, but all of the information i have gotten has been about one state or the other.
Expert:  Leslie D. replied 6 years ago.
This is a complicated question because Minnesota and Wyoming have two different approaches to child custody jurisdiction. Minnesota has adopted the Uniform Child Custody Jurisdiction Enforcement Act, which provides that the state where the child has lived for 6 months prior to the filing of an action will have jurisdiction over child custody. Wyoming, however, has not adopted the UCCJEA and has its own set of rules governing child custody jurisdiction. At what time was the action in Wyoming filed? This could impact the way the two courts interpretations of jurisdiction comes out. I am going to continue researching both state's laws and will be able to provide further analysis soon.
Customer: replied 6 years ago.
Reply to Leslie D.'s Post: The child support issue was filed with Basin Authority back in January. Nothing was done with it for several months. There is a document in form that will be put before a judge, but to my knowledge, nothing has been signed to this date.
Expert:  Leslie D. replied 6 years ago.
Where were you and your son living in January (on the date of filing) and how long had you lived there at that time? Sorry for all of the questions, but your location at the time of filing will be key in determining which state has jurisdiction.
Customer: replied 6 years ago.
Reply to Leslie D.'s Post: I moved back to Minnesota on the fourth or fifth day of January 2008. We established residency with the post office on that day by having our mail forwarded as of that day.
Expert:  Leslie D. replied 6 years ago.

Under Wyoming Statutes 20-5-301, Wyoming will have jurisdiction. Section 20-5-301 provides:

(a)? Except as otherwise provided in W.S. 20-5-304, a court of this state has jurisdiction to make an initial child custody determination only if:

(i)? This state is the home state of the child on the date of the commencement of the proceeding, or was the home state of the child within six (6) months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;

(ii)? A court of another state does not have jurisdiction under a provision of law from that state that is in substantial conformity with paragraph (i) of this subsection, or a court of the home state of the child has declined to exercise jurisdiction on the ground that this state is the more appropriate forum under a provision of law from that state that is in substantial conformity with W.S. 20-5-307 or 20-5-308, and:

 

(A)? The child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and

 

(B)? Substantial evidence is available in this state concerning the child's care, protection, training and personal relationships.

 

(iii)? All courts of another state having jurisdiction under provisions of law from that state in substantial conformity with paragraph (i) or (ii) of this subsection have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum to determine the custody of the child under a provision of law from that state that is in substantial conformity with W.S. 20-5-307 or 20-5-308; or

 

(iv)? No court of any other state would have jurisdiction under the criteria specified in paragraph (i), (ii) or (iii) of this subsection.

 

(b)? Subsection (a) of this section shall be the exclusive jurisdictional basis for making a child custody determination by a court of this state.

 

(c)? Physical presence of, or personal jurisdiction over, a party or a child shall not be necessary or sufficient to make a child custody determination.

The statutory construction of this section can get a little confusing, but the "or" at the end of (iii) indicates that if any one of the subsections are satisfied, Wyoming will have jurisdiction. Since the conditions of (i) are met (your child lived in Wyoming within 6 months of filing and one of his parents still lives in Wyoming), Wyoming will have initial jurisdiction in this case. However, Wyoming can decline jurisdiction, at its discretion, since your son now lives in Minnesota. This will be at the court's discretion and will have to be sorted out through the courts. I think you mentioned that the court in Minnesota was involved, is the court there seeking jurisdiction? It can assume jurisdiction if Wyoming agrees to decline jurisdiction of the matter. However, Wyoming will not be obligated to decline jurisdiction.

Are you working with anyone from the Minnesota court system? If so, you may want to contact them for more information. I am not sure what steps, if any, they have taken in this matter. Please let me know if you have any other questions. If this answers your question, please click "accept" so I may receive credit for my answer.

Best wishes and good luck,

Leslie

Customer: replied 6 years ago.
The only thing though is that in para (A) states that the child and the child's parents, or the child and at least one (1) parent or a person acting as a parent, have a significant connection with this state other than mere physical presence... which has not been met... I live here, he lives here, his doctor is here... etc. Does that substantially change that answer?
Expert:  Leslie D. replied 6 years ago.

I should have clarified for certain where the father was located. My answer had assumed that the father was living in Wyoming. If there is no parent living in Wyoming, the analysis does change, because the requirements of subsection a would not be met, unless the child actually lived in Wyoming on the day of filing (which would depend on the exact day of filing in relation to the exact day you moved to Minnesota). Even if this were the case, it is unlikely that Wyoming would accept jurisdiction when no one is living in the state any longer.

If this is the case, you can request the court in Minnesota to assume jurisdiction, and it sounds like you have already done so. Has Minnesota initiated the request to transfer jurisdiction on your behalf?

Please let me know if any of this is unclear. I know that statutory construction and language can get a little confusing sometimes.

Thanks,

Leslie

Customer: replied 6 years ago.
Ok hopefully this is the last time. His father still works and lives in Wyoming. My son and I live in Minnesota. We did not live in Wyoming on the day of filing either the initial paperwork to establish support or the initial documents to file withthe court. We have been here in Minnesota without leaving for the past 6 months. Does that change anything?
Expert:  Leslie D. replied 6 years ago.

Okay, I think I misunderstood what you meant by "he" in your last post. If the father still lives in Wyoming, then Wyoming will have jurisdiction. Both parents need not live in Wyoming, but only one of them. The words "and the child is absent from this state but a parent or person acting as a parent continues to live in this state" is what establishes this. Only one parent needs to remain in the state. However, as I mentioned before, this doesn't conclusively mean that Wyoming will accept jurisdiction. The court in Wyoming could still decline jurisdiction since the child now lives in Minnesota. To pursue this further, I would work with the court in Minnesota. I'm not sure what your interaction has been with the court there thus far, but if you haven't done anything at this point, you would want to file your own petition to establish custody in Minnesota and ask the court to assume jurisdiction over the matter.

Please let me know if you have any other questions.

Thanks,

Leslie

 

Customer: replied 6 years ago.
sorry, now that you opened up that last reply, it changes the question.... Minnesota law states that he would have to petition the court for any type of contact, from visitation on up. in order to get custody from me according to Minnesota law, he would have to prove me an unfit parent.... however, when I called legal services, we went round and round on this one... I guess I am looking for a more clear cut answer than they have provided me with. The botXXXXX XXXXXne is this, do I need to worry about him getting custody of my son, or having any legal standing to take him out of his state of residence without my permission, or do I have to cooperate with him in regards XXXXX XXXXX over backwards to ensure that he has quality parenting time? He has not attempted to contact us other than the one letter asking me if I had filed taxes and if I claimed our son, and this latest letter stating that if I don't get a full time job to lower his child support, that he will seek full custody.
Expert:  Leslie D. replied 6 years ago.

In Minnesota, a court will not change the current custody arrangement unless the custodial parent is proven to be a danger to the child. This is most likely why you were told that he cannot take custody from you unless he proves that you are an unfit parent.

It is true that in order to have a legally enforceable right to any kind of contact with a child, the non-custodial parent must petition the court to establish a visitation arrangement.

Under Minnesota law, a woman who gives birth while she is not married has sole custody of the child until an order is established giving the father rights. Since Minnesota law also states that custody will not be changed unless the custodial parent is said to be unfit, you can make the argument that you should remain the custodial parent as long as you are a fit parent, and thus the only way the father should be granted physical custody is if he can show that you are unfit.

However, as we discussed above, there is a possibility that Wyoming law will apply here, and not Minnesota law. However, even in a state in which the mother doesn't have the right to sole custody in the absence of an order stating otherwise, children are often left with the parent that has raised them and cared for them. In this case, you have raised your son since birth, and it is unlikely that a court will take him from you unless you are shown to be unfit. The most important factor the court looks at in awarding child custody is the child's best interest, and many courts are unwilling to disrupt a child's life by removing him or her from the parent that he or she has always lived with. The chance that a court will remove your child from your care and give him to a father he has had little to no contact with is very unlikely. The father's statement in his letter was likely just a threat in an effort to try to reduce his child support. It doesn't mean that he absolutely can't get custody of the child, but the chances of him getting the child removed from your custody are very small, and it is likely that if he does seek custody, he will be awarded visitation. If he is awarded visitation, the court will generally try to organize a visitation schedule which is in the child's best interest, taking into account the distance between the two of you.

You may want to talk to a local attorney about this, who can help you to recognize trends in your state regarding child custody, and who can help you to prepare your best case. The following link provides free or low-cost legal services to those who qualify: www.ptla.org/links/services.htm. Please let me know if you have any further questions.

Best wishes and good luck,

Leslie

Leslie D., Family Law Attorney
Category: Family Law
Satisfied Customers: 201
Experience: Experience in family law, abuse and assault victim advocate
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