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Samuel II
Samuel II, Attorney at Law
Category: Family Law
Satisfied Customers: 27011
Experience:  General practice of law with emphasis in family law.
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My son is getting a divorce and his wife is trying to move

Customer Question

My son is getting a divorce and his wife is trying to move out of state. they have a parenting plan from the court and he is suppose to get the kids every other weekend. she called him 2 weeks ago and said this is your last visit I'm moving out of state. my son has no money just lost his business because of this divorce, he is living with me , he goes to counseling every week and physiologist about once a month . I don't know what to do to help him? I don't understand how a guy can come home from work one day and his wife can say I want a divorce and you have to move out of your house, you have to close down your very successful business, file for bankruptcy , loose your means of work because of the bankruptcy, than when you can't afford to fight for your kids she is moving out of state with no means to visit them. how can all this be right in todays world? thanks for your time Ken Parsons
Submitted: 2 years ago.
Category: Family Law
Expert:  Samuel II replied 2 years ago.
Hello Ken
This is Samuel and I will discuss this and provide you information in this regard
Please tell me
1- When you say "parenting plan" is that a court Order?
Customer: replied 2 years ago.
yes I believe so, the judge set it up at the initial hearing.
Customer: replied 2 years ago.
that was a year ago
Customer: replied 2 years ago.
she told the court at that time she was not relocating, even though she told my son she was. she has a boyfriend in California and he has two kids and he would not relocate because of them, so she is relocating .
Expert:  Samuel II replied 2 years ago.
HelloThank you. If it is a court order, the Mother will be in violation of the order if she takes the children out of state, without the court's permission. I suggest, that your son can file for an injunction to keep her from moving out of state. I suggest, the he file a Modification seeking a change in custody and that he notes the Mother said she is leaving the state with the kids. He can do this on his own, by getting the form from the clerk of the court where the order was issued. He does not need a local attorney to do this.
Expert:  Samuel II replied 2 years ago.
However, i suggest that he will want to also request an emergency hearing on the matter to make a Temporary change until the matter can be fully resolved by the court. The clerk can help with getting him an emergency hearing But he has to tell the clerk that the Mother is moving out of state with the kids against the court order.
Expert:  Samuel II replied 2 years ago.
If he can get the Mother to text him in that regard, that would be very helpful evidence. For instance, he can text her and say When you said you were leaving the state with the kids, when do you plan to do that?
Customer: replied 2 years ago.
yes but the mother in law bought the kids a train ride for Christmas before the divorce , so she asked my son if they could go on this ride and he said ok not knowing that was giving her permission to take them out of state anytime she wanted.
Expert:  Samuel II replied 2 years ago.
And then her response will be the evidence he can show the court to have a temporary order issued granting him sole custody at this time. Otherwise, he needs to wait until she moves and then file a Contempt proceeding. And it may be difficult to have the court order her to return the kids.
Customer: replied 2 years ago.
he has that already I believe,
Expert:  Samuel II replied 2 years ago.
Ok. So this is not a permanent move ?
Expert:  Samuel II replied 2 years ago.
Are they just going on vacation?
Expert:  Samuel II replied 2 years ago.
even if your son said they could go on the train ride, that was before the custody order and she cannot move out of state with the kids or keep your son from his court ordered visits.
Customer: replied 2 years ago.
no this is permanent, we thought that once he said she could take the kids out of state she could do anytime after this.
Customer: replied 2 years ago.
she has not sold the house yet but is remodeling to do so, I guess
Expert:  Samuel II replied 2 years ago.
Hello
No. That is not the case. She cannot move permanently with the kids, if he does not agree to that. And so he can file for the modification/injunction now or he can wait until she moves and file the Show Cause/Contempt
Either way he can get those forms from the clerk of the court and do it without a local attorney
Customer: replied 2 years ago.
so he goes to court house to get forms? what are they called?
Expert:  Samuel II replied 2 years ago.
HelloYes. He can ask the clerk for a Modification for Child Custody and needs to get an Injunction to keep her from Moving out of state with the kids - and so can he get an emergency hearing because she is moving.
Expert:  Samuel II replied 2 years ago.
Or he can wait until she moves and file a Show Cause/Contempt Petition.
Customer: replied 2 years ago.
how long does that take? does she have to be served? how will she find out about this? court notify her?
Expert:  Samuel II replied 2 years ago.
HelloFor an emergency hearing, that could be done the day he files. The court will order your son Temp full custody and the Sheriff will help him get the kids and then serve her with a summons to appear for a full resolution to the matter. Yes, she needs to be served.
Expert:  Samuel II replied 2 years ago.
For the emergency hearing, your son must make it clear that she is moving And that it is harmful to the children and against the court order. That is why a text from her will be important to show that she did say she was moving with the kids and when
Customer: replied 2 years ago.
his current attorney basically has not done anything since he found out he was going bankrupt and there was not the 30k just to go to trial... he paid him and the mediator, but that was not filed in the 14 day window because of the bankruptcy, which my son told the attorney about long before it. he had the bankruptcy attorneys contact info but kept not returning messages from the bankruptcy attorney. these papers could not be filed before the bankruptcy was completed. so because they were not filed they are no good. this was not a good agreement for my son as they said it was just about custody and not money and when he got there it was all about money and not the kids. his attorney wanted it done because my son had no more money to pay him.
Expert:  Samuel II replied 2 years ago.
HelloThank you. I cannot help you with any bankruptcy questions. Are you saying the Court did not issue any orders of custody?
Customer: replied 2 years ago.
I guess i'm going to the court house now to get papers. yes they did not from the mediation , just the first hearing.
Customer: replied 2 years ago.
what else can I do?
Expert:  Samuel II replied 2 years ago.
HelloThat is all that can be done. If there is no court order from the mediation, then I suggest he file for custody.