Family Law Questions? Ask a Family Lawyer Online.
Hi, are you able to see this and respond?
Yes I can see this , thank you.
Great. Thank you for your question.
You mentioned that the girlfriend lived in Montana for 3.5 months. Where was she prior to that? Alaska?
yes she was.
How long ago did she leave Montana?
1 week ago, we went to the family ranch for the day, when we returned she was gone.
How old are the children?
She has done this 2 other times before once in Las Vegas and once in Alaska. As I stated she is not a very stable person and these children are toddelers 2 yrs and 1 yr.
My son Michael was the stay at home parent while she worked. We found out that she had been lying about work and was spending time at the local casinos here in Billings MT.
You mentioned that there is no parenting plan in place. Has either parent filed for custody?
Not at this time, I have been trying to encourage my son to do so, but he is afraid she will take off again. She is from the Philines (sp)
Tell me about the 3.5 months in Montana. Was there any indication that this wasn't a permanent move? For example, did mom maintain a residence back in Alaska? Did the kids have toys and a bed back in Alaska?
no, she lived with 13 other family members in a 3 bedroom townhouse. When she moved here she transferred her WIC for the children and they stayed here at my house for 4 - 6 weeks then got an apartment. Apparently it was in her name and she had a six month lease. She only stay in that apartment for about three weeks before she hopped a plane and went to Alaska.
She also transferred her employment with Sams Club from Alaska to Montana.
Thank you for that information. When contending with interstate custody matters, there are really two questions--first, which state has jurisdiction, and second, what an expected outcome might be...
Ok, so where do you think this will be handled. Montana or Alaska?
Allow me to address the second question first. Custody is determined based upon the best interests of the child. It's very loosey-goosey (obviously not a legal term of art), but it allows the court to apply common sense. Both parents have a right to be heard and, absent affirmative reason to the contrary, both generally have a right to have significant and meaningful contact with the children. Every custody order is different because every situation is different. If one parent exhibits unstable behaviors that are adverse to the best interests of the children, the court is usually going to give the other parent more control over custody-related matters. The court can basically tailor a custody order in whatever way it needs to get the best outcome, and that can include ordering the relocation of the children from one state to another.
ok, that makes sense.
Jurisdiction can be tricky. Both Alaska and Montana are Uniform Child Custody Jurisdiction Enforcement Act states (UCCJEA). This is a uniform set of laws that are pretty much adopted by all states to resolve issues that arise when a child is taken from one state to another...
Under the UCCJEA, jurisdiction is determined based on the child's "home state". The home state, however, is not the same thing as the state of residence. A child's residence only automatically makes the state their home state if they have resided there for six consecutive months...
If the residence has been for less than six consecutive months, the court will consider the totality of the circumstances to determine the home state. For example, if the kids are enrolled in school (if older), if they have a pediatrician, if they have a bedroom and toys in another state... common sense things to judge whether the child is firmly relocated, or if the child is just visiting. If the child has firmly established a new state as the home state, jurisdiction can be established even though the child has not resided in-state for less than six months.
As you can see, the nuances of every case will affect the outcome, so this information should not be construed as complete or advice without consulting in person with counsel, but I would strongly recommend that your son consult with a Montana family law attorney as soon as possible to discuss filing for custody in the state of Montana.
In a worst case scenario, the Montana court would decide that Alaska is the home state. In that situation, the Alaska courts would have jurisdiction. This doesn't mean it would result in a bad outcome, but it does mean that your son would have to deal with the inconvenience of working with the Alaska courts. It's just better to do locallly.
ok, The children did not even have their own room in Alaska as there are so many that live there. They slept with her on a mattress on the floor. The apartment they she rented here was a two bedroom apt that was being set up for the kids.
I can give you the law, but you'll have to rely on your own analysis... I'm just not in a situation to make the assessment for you.
At least, not a reliable analysis--even I wouldn't trust my opinion without more information.
ok, thank you. I think that this conversation, will be enough to convince my son that all is not lost. He is devastated.
It's far from lost. Not even close.
But he does need to be diligent and to get started on this process. The earlier he begins, the better.
Are there any suggestios as to what he should do for the court to consider him the more stable parent?
I would focus not on who is more stable, because that is not the legal question. The legal question is what is in the best interests of the child. Your son has an idea of what is in their best interest. He needs to develop a plan for how to show the court that his idea is right. I do recommend using an attorney to assist with that to ensure the best outcome possible.
Thank you so very much. I hope I can convince him that this is the best solution for both him and the childrens mother as a court order will define each parents rights and how to address visitation and custody.
My pleasure. It's difficult, but this is the hardest part. Tell him I said that it gets easier once you get through the first couple of months.