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Ely
Ely, Counselor at Law
Category: Family Law
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my ex wife wants to take my 4 years old son for 12 days vacation

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my ex wife wants to take my 4 years old son for 12 days vacation to Bogota Colombia. my concern is that perversely she have accused me with child abuse and I didn't see my son for three months because of this but thanks god the court have dismiss the case about 4 months ago and I see my son 3-4 days a week. she have lost my trust because of this! now there is anther issue that batter me, sense we got separated she have move 3 different homes with my son to her family member and didn't rent an apt or sign a lease, she don't have a "real" job just temporary jobs, she don't study or planning too basically she don't have any reason to come back to the USA because she is straggling in the US. as far as I know her parents is very finical stable and can help her to start a new life in Colombia. I have file for divorce after making an agreement with her by email for custody and etc. unfortunately after she have agree for this by email she have change her mind and didn't want to sign on the agreement my lawyer did. I have try to convince her that is the correct thing to do but she didn't sign, I have file for defaults after she didn't response for the divorce doc I have send her my court date was last month she didn't show up and I got the divorce done. I have 205 days a year total with Jewish holydays and act. and she have the rest (that's no the way I want, I want 50% time sharing but my lawyer convince me that this is the correct thing to do to protect me I feel bad for her but it is what it is... as well on the agreement that I want her to sign I agree for $800 a month, but when I file the default my lawyer change it for $650 I am making $4000 a month gross no real estate etc.) she don't know yet that I did this!
1. in case she don't come back what will be the process to bring my son back? and how long can is take?
2. what or how is the law between us and Colombia as far as kidnaping?
3. my concern make sense? from cases you heard or know....
3. if I will not sign for her she will not sign for me when I will like to visit my family overseas....
*the most importuned for me is to get an answer about the law between Colombia and USA and how long is can take to get my son back, and what will be the process.
Submitted: 1 year ago.
Category: Family Law
Expert:  Ely replied 1 year ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation. Your questions blend in together so I will attempt to answer them all but within a different structure.

Challenging Her Leaving
One can always ask the Court to stop her from leaving. If one feels that kidnapping is imminent, what one can do is the following - file for a modification of the custody decree that asks that she be prohibited from leaving the country without prior consent, placing a bond, and/or whatever other requirements are necessary.

While the modification is pending, one can file and have heard on the same day as the filing for modification an emergency ex parte order asking the Judge to STOP her. This is done if the matter is an emergency. If the court agrees, it will issue an order for her not to leave even without her being there. Then she would be served with the modification petition AND the order and the Court will revisit the matter a few days/weeks later for temporary orders where she has a chance to respond, and the Juudge may change, confirm, or drop the ex parte order.

In other words:

1) Modification filing, request for ex-parte order (same day)
2) Temporary orders hearing where she can appear and the ex-parte order may be confirmed, dropped, or modified.
3) Final trial hearing down the line.

At these stages, the Court may prevent her from leaving with the children all-together if there is a chance of kidnapping, or, demand a hefty bond before they do, and/or whatever else the Judge feels is proper.

International Kidnapping
The US works hard to avoid kidnapping. If this is done, one can file a complaint with the Department of State’s Bureau of Consular Affairs and they work to help resolve the matter. See here. The parent and the government has the ability to get the child back under federal law - see here.

Both US and Columbia are signatories to the Hague Convention on the Civil Aspects of International Child Abduction. See here. However, in reality, the matter is generally resolved by legal action wherein the parent hires an attorney in Columbia to get the children back. She may also be criminally liable if she ever steps foot back into the USA under federal law,and, state law (Fla. Stat. Ann. § 787.03).

I hope this helps and clarifies. Good luck.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces and then submit, as this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects poorly on me, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. (You may always ask follow ups at no charge after rating.)
Customer: replied 1 year ago.

thanks for your reply.
as far as I understand she cant leave the country without my signature on same kind of doc, as well I will not worry now on "Challenging Her Leaving" like I say I have a court order on time sharing and etc. and my son passport is in my position as well his name is XXXXX XXXXX her name on the passport.


I still didn't got an answer from you about how long more or less will take to bring my son back to the US (case studying, past experience something) this should be part of " general information".


thanks.

Expert:  Ely replied 1 year ago.
N,

thanks for your reply.

You are welcome.

as far as I understand she cant leave the country without my signature on same kind of doc

This is only true if the child custody orders require you to sign off on a document. If not, she can still attempt to leave the country.

You may be thinking about her ability to get them US Passports. Technically, this requires both parents' signatures, but she can appeal to have this rule waived for "good reason" and who knows what she may state in that request. Also, if they already have US Passports, or, if the kids can get Colombian passports, then this does not even apply.

I still didn't got an answer from you about how long more or less will take to bring my son back to the US (case studying, past experience something) this should be part of " general information".

Oh - apologies! I was so wrapped up in the nuances of this matter that I never did tell you that time estimate. Assuming she never returns from Columbia and immediate action (federal complaint to Department of State’s Bureau of Consular Affairs, private attorney in Columbia) is taken, an average time is about 6 months.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89141
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 5 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.

 


hi. my ex-wife go to child protective services again and say that i have bite my son and he have a mark on his hand. a child protective investigator came to my home and told me this i told her i need to consult to my lawyer before she can ask me more questions. For my opinion my ex is doing all this because i have file a default on our divorce after she didn't response, for 5 months to do a mediation. She didn't come to court i got finial judgment on the case 50% custody on our child and paying 650$ a month (i make $4000 a month before taxes) i want to be fair with her. Long story short she have file for domestic violence 10 months ago on her and on child abused on my son (saying i have sexual abused my son) both case have been dismissed. After i didn't see my son for 4 months. i have spent more than $25k all together on lawyers losing work time and more. i don't have any more founds to get a privet lawyer.


Finally I didn't talk to social services investigator they don't have any evidence as well I got statements from my son teachers that they never saw any bite marks on my son arm, and now I understand why my ex did go in this direction she was very upset about me filing a default on our divorce. I figure this out just two days ago when I got "Motion to Set Aside Default Judgment" from her lawyer. My questions to you is: 1. What do I do next? What's the process? 2. What is her chances to get the case reopened if is only 2 month past from default. 3. Shortly that's what she saying: She is saying that because she don't English is not her first language and she have to move 3 times because of DV case that was dismiss 6 months ago, she saying that there is a DCF case open and act... By saying all what is her chances and what should I expect next. 4. How do i stop her from keep going to child services and putting false allegations? is very festering to be stress what she will do next and how she will use the system to try and destroy my life. I'm concern to start war with her she is very unpredicted and unstable person who don't think before doing something. I'm saying that because i did my research and find that this child protective services can take my son away. please help. thanks.

Customer: replied 1 year ago.

do you speak Hebrew?

Expert:  Ely replied 1 year ago.
Hello friend. I am currently in an area where there is no internet access. As such, I will not be able to reply to our conversation until late Sunday evening. My sincere apologies for the wait! I will also search for an expert professional to possibly follow up so you do not have to wait. My sincere apologies again for the inconvenience. I will follow up Sunday evening if you have not yet been helped... (Ken ani daver ivrit)
Customer: replied 1 year ago.
Is ok thx much I want only you to answer to me.
Thanks. Toda shabat shalom 😊
Expert:  Ely replied 1 year ago.
My sincere apologies for the wait.

Od ehad, shalom.

Before I answer your follow ups, I would ask if you could please elaborate on the following:

1. What do I do next? What's the process?

Someone in your situation may wish to respond to the motion. What they are attempting to do here is to set the default motion aside. This can only be done for good reason, but the Judge has the final say and full discretion to grant the request or not. Obviously, I do not know the reason(s) that they are claiming. Let me know if you need a sample reply.

The Court will hear the motion. If it is denied, the matter stays as is and the default judgment stands. If it is granted, she essentially puts the default judgment aside and re-opens the case for another trial.

2. What is her chances to get the case reopened if is only 2 month past from default.

Pretty poor. She generally has to file 30 days or no later past the default judgment to begin with. In addition, in order for the court to grant a motion to set aside a default judgment, the moving party is required to show the trial court three things:

(1) the party’s failure to file a responsive pleading was due to excusable neglect;
(2)the movant has a meritorious defense to the underlying action; and
(3) the moving party acted "with due diligence in seeking relief from the default." Airport Centre, Inc., v. Jorge Ugarte, et al., No. 3D11-2997 (Fla. 2nd DCA July 11, 2012) citing Lazcare Int’l v. Caraballo, 957 So. 2d 1191, 1192 (Fla. 3d DCA 2007).

In short, unlikely, unless she can prove foul play on your part.

3. Shortly that's what she saying: She is saying that because she don't English is not her first language and she have to move 3 times because of DV case that was dismiss 6 months ago, she saying that there is a DCF case open and act... By saying all what is her chances and what should I expect next.

I see. This is very case by case matter. I have seen a default judgment set aside because the other party claimed not to have spoken English, but that was within 30 days of the default judgment. Here, it is 2 months past. So the fact that she waited this long really hurts her argument.

4. How do i stop her from keep going to child services and putting false allegations? is very festering to be stress what she will do next and how she will use the system to try and destroy my life. I'm concern to start war with her she is very unpredicted and unstable person who don't think before doing something. I'm saying that because i did my research and find that this child protective services can take my son away. please help. thanks.

You cannot "stop" someone from alleging. However, you can retaliate by threatening to file a suit for DEFAMATION and INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS in civil court. Someone in your situation may wish to threaten to do so. This would be separate from the family matter and a whole another civil suit.

To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS is essentially outrageous actions that are meant to intentionally inflict emotional pain. RJ v. Humana of Florida, Inc., 652 So. 2d 360 - Fla: Supreme Court 1995.

DEFAMATION - Under Florida law, the elements of a defamation claim are: the defendant published a false statement; about the plaintiff;
to a third party; and the falsity of the statement caused injury to the plaintiff. Border Collie Rescue v. Ryan, 418 F.Supp.2d 1330, 1348 (M.D.Fla. 2006).

Threats of a lawsuit may have her think twice before other false reports against you.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 89141
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 5 other Family Law Specialists are ready to help you
Customer: replied 1 year ago.
Ely, first thanks so much for your help and full answers!!!
She is claim, (main reasons)
1. There is a DCF case open.
2. She didn't update her address with the court.
3. She say I have contact her and told her I want to finish the divorce been us and no court. That's is true at some point but after 4 months of trying to talk to her sign in to an agreement that my lawyer prepared and after we go back and forward by emails and she agree for all the details. Finely she didn't want to sign the agreement and my lawyer recommend me to file for default.
My concern is:
1. my lawyer put the Time shearing in words correct but on the charter is looks different.
2. The address on the default peepers small part is missing instead of East....
There is west.... Is the default was served to her, I'm not sure how this is working?, after say all of the above do you still think she don't have a good chance? The best thing for me to do is is ask my lawyer to response by letter?
She don't response to my text about my son and act... Is concerning me is she is planing something? is that what her lawyer recommend her to do (not to response text from me)?I have called her and told her that I'm done with war and paying all this money to lawyers instead of spending this on my son. I told her to tell her lawyer to call me and tell me what she wants I will do it, if is make some sense . Did I do a mistake?
Can you recommend on a speaking Hebrew lawyer in my area?
Last thing, do you think I should talk to a DCF investigator? I have heard troubles things about DCF.... Last time she go and said I have bite my son... Which is a lay!!! I will never do such a stupid thing or heart my son in any way!!!
Thanks much.
Expert:  Ely replied 1 year ago.
Hello! Thank you for your patience. I will reply in 10 minutes. Just wanted to let you know.
Expert:  Ely replied 1 year ago.
N,

My concern is:
1. my lawyer put the Time shearing in words correct but on the charter is looks different.

What do you mean the charter? Do you mean the decree (the orders)? If so, then the Court will go off whatever the decree states.

2. The address on the default peepers small part is missing instead of East....
There is west.... Is the default was served to her, I'm not sure how this is working?, after say all of the above do you still think she don't have a good chance? The best thing for me to do is is ask my lawyer to response by letter?

We do not know what they will be claiming exactly, but it seems that they may allege that they were not served correctly, either on purpose or by accident, by you. YES, the best thing to do is to file a response using counsel, asking the Court to DENY them the motion to set that default judgment aside.

She don't response to my text about my son and act... Is concerning me is she is planing something? is that what her lawyer recommend her to do (not to response text from me)?I have called her and told her that I'm done with war and paying all this money to lawyers instead of spending this on my son. I told her to tell her lawyer to call me and tell me what she wants I will do it, if is make some sense . Did I do a mistake?

No, this was fine. If she is acting out, being unreasonable, and basically is acting unpredictable, stating "I've had enough, and I will have my attorney deal with this" is a good step.

Can you recommend on a speaking Hebrew lawyer in my area?

May I recommend the FL Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP. The key is to call them and ask for an attorney who speaks Hebrew. They should have a couple...

Last thing, do you think I should talk to a DCF investigator? I have heard troubles things about DCF.... Last time she go and said I have bite my son... Which is a lay!!! I will never do such a stupid thing or heart my son in any way!!!

Not without an attorney present! First of all, understand that DCF does not have the power to simply "take" the child or terminate your parental rights with the child. You also have NO DUTY to talk to DCF and may simply cancel the meetings.

They do, however, have state-mandated right to stand in front of the Court to ask to modify a parent's custody if they feel that the minor is in danger. The parent may choose to (1) work with DCF and do what they want you to so that they do not file in Court, or, (2) they may take their chances if DCF files.

If you choose the first option, once they feel that you have reformed (say, a few parenting classes), they will generally leave you alone.

If you choose not to cooperate, then they can move to try to modify or even terminate your parental rights if they can prove by clear and convincing evidence neglect or abuse in various forms.

In any step in the process, you may retain an attorney (or not) and challenge their assertions in Court. While DCF normally has the Court's ear, it is not unusual for the Court to rule against DCF.

But DCF can be a threat, so it is best to have counsel when dealing with them.
Customer: replied 1 year ago.
1. Sorry i have meant schedule chart. The works is correct but the chart under Is not correct on final court decision.2. I have see the M2 that has been file and she didn't alleged for incorrect address but she said she didn't got it and she was have to move 4 time (laying) because of DV when my divorce was file and act... ( was never was a DV or anything close to it is all a BIG lay) no police report or nothing in 7 years of relationship3. In regards XXXXX XXXXX saying that I "trick" her by saying to her that we will stalled between us... Is that a good reason? 4. I think I may didn't explain correct, I'm just out of founds and very concern to keep going in the "fighting" direction, basically I want peace. So I told her to tell HER lawyer to call me and tell me what she looking to get. I was very upset and down, she don't response to any texts about my son and there is not even minimum communication. So that's why I ask if its was a mistake to tell her that. How long do you think I have to response if the M2 was file on the Dec 6th?All my concern are coming from me having bad experience with her and when she gets upset she put my son in the middle and try to get me in troubles. I just don't have much founds left after spending 25k on the first case with the DV. The investigator want to talk to me about what my ex alleged, I have just ask what is about she told me about the "bite" and I told her I need to talk to my lawyer first and it's was one month ago I didn't got back to her or she to me. So should I talk to her with a lawyer?. " They make The chances" who will take chances? Should I compactly stop texting my ex? Even if I'm trying to keep good communication with her? I just think is good for my son that's why I try. I'm asking about the text because I'm concern of her saying I'm battering her... If the court will reopen the case what is my chances to get 50% custody? (I have now 60%) if I'm paying now 800$ a month, how much is the court can desisted I will pay more if I'm making $3,600 a month NET and she about $1,500? Thanks again.
Expert:  Ely replied 1 year ago.
Boker tov,

1. Sorry i have meant schedule chart. The works is correct but the chart under Is not correct on final court decision.

Unfortunately, the final court decision is what counts. To modify it, you would have to file a suit to modify the standing orders (which may also be done if she is successful in re-opening the suit, as a counter-suit, so to speak).

2. I have see the M2 that has been file and she didn't alleged for incorrect address but she said she didn't got it and she was have to move 4 time (laying) because of DV when my divorce was file and act... ( was never was a DV or anything close to it is all a BIG lay) no police report or nothing in 7 years of relationship3. In regards to her saying that I "trick" her by saying to her that we will stalled between us... Is that a good reason?

I am sorry, but this is really up to the Judge, and they have final say. Sometimes, it can be subjective, so I cannot predict what the Judge would say.

4. I think I may didn't explain correct, I'm just out of founds and very concern to keep going in the "fighting" direction, basically I want peace. So I told her to tell HER lawyer to call me and tell me what she looking to get. I was very upset and down, she don't response to any texts about my son and there is not even minimum communication. So that's why I ask if its was a mistake to tell her that. How long do you think I have to response if the M2 was file on the Dec 6th?All my concern are coming from me having bad experience with her and when she gets upset she put my son in the middle and try to get me in troubles. I just don't have much founds left after spending 25k on the first case with the DV. The investigator want to talk to me about what my ex alleged, I have just ask what is about she told me about the "bite" and I told her I need to talk to my lawyer first and it's was one month ago I didn't got back to her or she to me. So should I talk to her with a lawyer?.

Yes. If you do not, she/her attorney can attempt to intimidate/wear you down, using false/half-true allegations and legal tactics. Do not talk to her without counsel. In the USA, it is expected that each party will have an attorney. Not using an attorney may leave you at a disadvantage. I know you may not want to spend more, but I am being honest.

" They make The chances" who will take chances?

(I do not know what you mean. I never stated this.)

Should I compactly stop texting my ex? Even if I'm trying to keep good communication with her? I just think is good for my son that's why I try. I'm asking about the text because I'm concern of her saying I'm battering her...

Someone in your situation may wish to continue communication in regards to coordination of the visitation, etc, of the child. Communication as to everything else is best stopped until the matter is worked out. Not only can she use whatever you state in Court, but numerous text messages may have her try to make you look obsessive and irrational.

If the court will reopen the case what is my chances to get 50% custody? (I have now 60%) if I'm paying now 800$ a month, how much is the court can desisted I will pay more if I'm making $3,600 a month NET and she about $1,500? Thanks again.

Custody is "in the best interest of the child," which is VERY subjective and depends on more than just how much a parent makes. This includes, but is not limited to, general stability of the parent, financial stability, indoctrination of the child in the current school and environment, household condition and living condition of the child, other persons living in the house, etc. Due to it being subjective, I am afraid I cannot make a prediction - I am sorry.
Customer: replied 1 year ago.
If the M2 was file on Dec 6 how soon do you think I should response to the court to set aside her request?
Expert:  Ely replied 1 year ago.
As soon as possible. One cannot 'default" on a motion as one can on a suit being initiated, but it is important to still file a response as soon as possible.

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