My daughter has joint custody as per a custody agreement dated 2 1/2 years ago, my grandson's father has only seen him twice in 2 years, he is behind in child support and now we believe based on his actions he is going to go back to court and dispute the custody agreement even though her attorney at the time gave him every opportunity to sign the paperwork, help him file the paperwork and show up at mediation which he never did and now all of a sudden. He randomly calls, he has no home address and now he is calling demanding to see his son, doesn't ask, demands. He also recently told my daughter he received a letter from child support stating she was having financial difficulty, which no letter exists. We think he is setting up a case to show she is unfit, what our our options, we would like to do something before he does, we are thinking sole custody, but now sure how hard that is in NC, father lives in FL
1. Has anything happened in court since the "joint custody" order created 2.5 years ago? If so, what and when?
2. Was that done in Florida or North Carolina?
3. How old is the child?
4. Is your daughter married?
No nothing has happened in court since custody agreement, it was done in Florida, but she has been living in NC since March 2010 when they broke up. Rory will be 3 in September and as per the original agreement unsupervised visits are suppose to begin when he is 3 and we are nervous because he does not know his father. No she is not married, but lives with someone.
The first issue for your daughter might be to have the action transferred to NC. According to federal law, any legal action dealing with the custody or visitation of a minor child should occur in the state in which the child resides. As mother and child reside in NC, such an action would be proper there.
To have the action transferred, your daughter would need to file a petition in the NC court. Her pleadings would indicate that the action was originally litigated in Florida but mother and daughter now reside in NC and, as such, the custody/visitation issues should be litigated there.
Considering the federal law and the facts of this case, it would seem quite probable that the action would be transferred, your daughter would then be free to argue the sole custody issue in NC, a court much more convenient to your daughter.
As a note, if the father has already filed something in Florida, your daughter could still file in NC to request the transfer. However, your daughter should be cognizant of another bit of federal legislation, this one working against her. While federal law requires custody issues to be argued in the child's home state, it requires support issues to be argued in the paying parent's home state. Having said that, your daughter could always try to transfer the entire action to NC and, if the father didn't hire an attorney, it would be possible for the whole case to be transferred.
As to prevailing on the sole custody issue, please understand that any prediction is highly speculative as there are just too many variable involved. I would suggest that the long distance and his lack of any real involvement certainly work in your daughter's favor. With that in mind, I would suggest that your daughter has a good chance of winning on this issue. At the very least she should not be at all concerned about the father's ability to improve his situation at all. As to that, his lack of involvement should prevent a judge from ruling in his favor.
Please let me know if anything requires clarification.
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One last question does she have to have an attorney to file that the case be moved to NC, I just reviewed the custody agreement and it does state that after 6 months it will be moved to NC and he can not object to it, now he doesn't know that since he never showed up for mediation and we don't even know if he received final paperwork.
There is no legal requirement that she hire an attorney. However, I would urge her to consider doing so. A family law attorney would be familiar with the local laws and rules, would know the assigned judge and would otherwise help ensure the best possible result. My suggestion would be to at least meet with two or three attorneys in your area to discuss the case. If she likes what she hears and can afford their services, then she can retain one of them. If not, then at least she will have a better understanding as to how the process works.
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