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Family custody matter, turned into kidnapping by father of…

Family custody matter, turned into...
Family custody matter, turned into kidnapping by father of 11
Year old son who is autistic then leaving him overnight for more than 16 hours unattended Ana child was expected to give himself medicine instead of by an adult and almost overdosed. Due to this I have been able to get an emergency temporary TRO with no visitation for father for
14 days until initial temporary hearing. In that time though, father has harassed me and my son almost daily banging on doors and windows until they sound like they will break. He has slashed my tires along with a lot of additional harassment. He called my employer and harassed them, and now I have been "let go" from my job with no ! From the employer. I am now jobless and always looking over my shoulder. The police do Nothing to protect or enforce the TRO. I have been divorced for almost 7 years from this man and it has been 7 years of constant harassment and and court battles.This brings me to my question. We are not originally from San Antonio, TX. When we were still married my husband at the time decided to join the military which caused a move from
California to San Antonio, TX for his Miltary training. I am from California Ana that is where my support system is at. My husband has just finished his 8 year contract with the army reserves and is no longer in the military. I really want to move back to California for my son and I. I will have family support in raising my autistic son. I will have far more opportunities for consistent employment and great schools for my son. Of course my ex refuses to "allow" me to move back. He wants to pick up and move to Utah since most of his family have since moved from California to Utah.Do I not have a stronger argument and standing chance to be able to go to California with the fact that is where my support system is, and that is where we are originally from anyway before he moved us out of state. I'm so tired of the constant harassment from my ex and he has cost me 2 jobs now.
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Answered in 2 minutes by:
8/29/2017
RobertJDFL
RobertJDFL, Lawyer
Category: Family Law
Satisfied Customers: 15,211
Experience: Experienced in multiple areas of the law.
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Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. I am reviewing your question and will reply back shortly.

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Good evening,

When deciding whether a parent should be able to relocate, a court is going to decide based on what they believe is best for the child. Among the factors a court will consider are (but not necessarily limited to):

  1. the child's current relationship with the relocating parent and with the non-relocating parent and other significant persons in the child's life;
  2. the age and the corresponding needs of the minor child, and the likely impact the relocation will have on the child's development;
  3. the ability of the court to preserve the current relationship between the non-relocating parent and the minor child through substitute arrangements;
  4. the child's preference;
  5. whether the relocation will enhance the general quality of life for both the relocating parent and the child;
  6. the reasons cited by each parent either supporting or opposing the relocation;
  7. the current economic circumstances of each parent and whether the proposed relocation is necessary to improve those economic circumstances;
  8. whether the relocation is sought in good faith, including the extent to which the non-relocating parent has fulfilled his or her financial obligations to the relocating parent;
  9. the career and other opportunities available to the objecting parent if he or she also relocates to stay near the child;
  10. any history of substance abuse or domestic violence by either parent, including the failure or success of any attempts at rehabilitation;
  11. any other factor affecting the best interest of the child or any factor related to general custody considerations.

When you look at that list in light of the information you've provided, it's clear you have a very strong argument to relocate. There has been a history of harassment and the father seems unwilling to change. You'll have good schools for your son, and family support to help you. You'll have more job opportunities which means you could potentially earn more money, and provide better for yourself and your son. In other words, it's an enhancement of the life quality you have now. Utah is where his family is, but it doesn't provide the same job opportunities and possibly not the same school opportunities for your son. It also doesn't solve the concerns about the father's actions. You have a lot of positive factors for the move, whereas his argument seems to be that he needs you near him and near his family, but it doesn't take into consideration what may be best for your son.

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Customer reply replied 10 months ago
Thank you for your timely response. I do feel that I have a strong argument. Father doesn't pay his obligated child support and doesn't provide the court ordered health insurance either. I'm am carrying all the burden of raising the child but yet he continually makes it harder and harder to care for my son with the harassment, and the constant sabotaging my job and my son's progress with his special needs. I have a initial temporary hearing set on Wednesday of this week, however, I have been very disappointed in the attorney I retained for this matter. He literally took my retainer and then has been nothing but condescending and rude and He has failed to respond to me in any timely manner whatsoever. He has had over 3 weeks to serve my ex husband with paperwork and I have given him details of multiple places and addresses and even a doctor's appointment in which he could have easily been found and served and the attorney wouldn't act and give the information to the process Server in time. It is crucial my ex be officially served with the TRO and notice for hearing. I was finally able to speak to his paralegal today in which I brought up why they haven't had him effectively served, she responded with my ex is avoiding being served and I brought up the law in which the process server can attempt to serve my ex 3 days in a row and at 3 different times and then provide an affidavit which then allows him to tape the paperwork to my ex's residence door. She said that they were doing that today and I spoke to her at 12:30 pm. Meaning he wouldn't have gotten the paperwork on his door until the afternoon. I still have not heard back on whether it has even happened, additionally, it been weeks, and doesn't my ex have to be served and given 3
Days notice before a temporary hearing? She said today would count but I'm
Worried she is misinforming me.I asked if I could schedule time to go over the case and prepare for court on Wednesday and she said that won't be necessary. That seems odd to me. I have been to court many times in the last 7 years and never had a more remiss attorney.
Customer reply replied 10 months ago
another words I'm quite concerned about this hearing on Wednesday being a huge waste of time and money since there appears to be no clear plan. And additionally, I am
Scared do even bring up to this attorney anything about moving with fear he will just drop my case. When I initially asked in my consultation with him about possibility of moving he said I would be "stupid to even consider it" and he doesn't like represent stupid clients Ana he will drop their cases of he feels like it. And at this point I was desperate for an attorney. My son had been kidnapped by father and no one could find him. Father was able to kidnap my son 6.5 years ago and he hid out of state and it took me 4 months to find my son and get him back. So I felt I didn't have the luxury of time to interview multiple attorneys. He had good ratings on avvo.com but I'm strongly doubting any of their validity at this point.

A TRO is not effective until the responding party receives actual notice of the Order, either by personal service or “otherwise” and is required before the terms of the TRO can be enforced by the Court. See Ex parte Conway, 419 S.W.2d 827 (Tex. 1967). Once a Court issues a TRO, the clerk of the Court is required to issue a writ and is required to be served on the party against whom the TRO was granted “immediately”, but no later than 3 days prior to the hearing on the temporary injunction.

This attorney sounds like a real jerk though, and very unprofessional. You cannot "buy" a rating on AVVO -though I suppose he could have put his friends or other lawyers up to writing good reviews for him. He cannot simply withdrawal from the case without filing a motion to dismiss and permission of the judge, though.

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Customer reply replied 10 months ago
if he served him this afternoon then that would not meet the 3 day requirement, correct? Court date is set for 8:30 am on Wednesday?
Customer reply replied 10 months ago
I don't want to waste my time in the attorney showing up on Wednesday to just have the attorney say "I was there at the courthouse doe "x" amount of hours to eat up my retainer but not get anything accomplished on Wednesday whatsoever.

I would not think it would be effective. Here is the rule on service in Texas (Rule 21a):

(a) Methods of Service. Every notice required by these rules, and every pleading, plea, motion, or other form of request required to be served under Rule 21, other than the citation to be served upon the filing of a cause of action and except as otherwise expressly provided in these rules, may be served by delivering a copy to the party to be served, or the party's duly authorized agent or attorney of record in the manner specified below:

(1) Documents Filed Electronically. A document filed electronically under Rule 21 must be served electronically through the electronic filing manager if the email address of the party or attorney to be served is on file with the electronic filing manager. If the email address of the party or attorney to be served is not on file with the electronic filing manager, the document may be served on that party or attorney under subparagraph (2).
(2) Documents Not Filed Electronically. A document not filed electronically may be served in person, by mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.

(b) When Complete.

(1) Service by mail or commercial delivery service shall be complete upon deposit of the document, postpaid and properly addressed, in the mail or with a commercial delivery service.
(2) Service by fax is complete on receipt. Service completed after 5:00 p.m. local time of the recipient shall be deemed served on the following day.
(3) Electronic service is complete on transmission of the document to the serving party's electronic filing service provider. The electronic filing manager will send confirmation of service to the serving party.

(c) Time for Action After Service. Whenever a party has the right or is required to do some act within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, three days shall be added to the prescribed period.
(d) Who May Serve. Notice may be served by a party to the suit, an attorney of record, a sheriff or constable, or by any other person competent to testify.
(e) Proof of Service. The party or attorney of record shall certify to the court compliance with this rule in writing over signature and on the filed instrument. A certificate by a party or an attorney of record, or the return of the officer, or the affidavit of any other person showing service of a notice shall be prima facie evidence of the fact of service. Nothing herein shall preclude any party from offering proof that the document was not received, or, if service was by mail, that the document was not received within three days from the date that it was deposited in the mail, and upon so finding, the court may extend the time for taking the action required of such party or grant such other relief as it deems just.
(f) Procedures Cumulative. These provisions are cumulative of all other methods of service prescribed by these rules.

If it was served after 5, it's treated as being served on Tuesday, and he has 3 days from then.

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You are entitled to a one time, 14 day extension (in the discretion of the judge) of the TRO. I would at least have him ask for that given that the defendant has been avoiding service.

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Customer reply replied 10 months ago
According to how this reads I am interpreting it that even if he was served at 2:00 or 3:00 pm today it would still only be 1 1/2 days notice since court is set for first thing in the morning on Wednesday. Is that correct?
Customer reply replied 10 months ago
Ah! That reminds me! His paralegal mentioned that they want to request a 14 day TRO extension
Customer reply replied 10 months ago
That is their angle. She explained it to me as though my ex-husband would ask for an extension of time to be better prepared for the case however, really she was stating that on Wednesday they are requesting an extension because they did not do their due diligence and serving him properly and in time.

No, they don't do half-days. But it says "three days shall be added from the time of service", so I interpret that as if a person is sued on Monday, I wouldn't count it, and they have until Thursday.

If they had served him early on, or tried to, right after the TRO was issued, this wouldn't be a concern. But the court should grant the extension, especially if he really is avoiding service now.

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Customer reply replied 10 months ago
here's where I stand. I don't have a job. My ex is harassing me daily. My attorney is terrible and I have need to get my son safe and get me into a job that is dependable and surrounded by my support system. My lease is up on my current apartment and I was originally just going to resign the lease but I feel the time has come to res consider staying in Texas any longer. I feel like there is nothing holding me back from moving. However, I don't feel I have the time, money, or good enough attorney to get this matter heard in court in a timely manner. There is no point in trying to find another job here that my ex husband will just jeopardize when I could instead focus my attention on finding a job in California in which I already have some great leads. I know that I shouldn't violate the current custody order which says neither parent should move out of the county but my ex husband has and is violating the current order in so many ways I couldn't even count them all. And yet he never gets punished and always gets away with it. At this point I feel it is safer and in my son and my best interest to move asap. School start on Sept. 6th in California Ana I already have family that is going to let us live in their large 3 bedroom 2 bathroom house to get my son enrolled in the same school district I will lease an apartment within 30 days.I know the courts won't like that I moved without permission but I have watched over and over how my ex violates the orders in much more extreme ways and is only slapped on the wrist. I feel I am doing this in an effort to better my son's life. I almost feel that in this situation it is begged to ask for forgiveness than permission.

I'm not sure what your question is? I understand what you're saying, and where you are coming from. But if you're looking for me to tell you it's okay I cannot ethically tell you to violate the law. Just know that if you do go and your ex files a contempt motion, the court will make you come back for the hearing.

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Customer reply replied 10 months ago
The court will make me
Fly back for the hearing but I'm wondering what the likelihood is that They would make me
move back to Texas just to be harassed by my ex continually putting my son in danger or if there is a chance they could transfer the case to California.

In my professional opinion? While a judge would be pretty ticked off at you, I don't see them ordering you to move back.

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Customer reply replied 10 months ago
That's what I was thinking also. Especially with my ex putting my son in danger, my son's organs started failing and he almost died because my ex
Left my son, a special needs child alone to self medicate in father's absence. And then when I made reasonable efforts of trying to communicate with father do work together for a resolve of perhaps having my son FaceTime me when he is taking the medicine so I know he is getting the right amount and dose, or if he would be ok with day visits on Saturday and sundays but no overnights because that is when my son needs his medication. My ex wouldn't even try to consider any of those. He just got aggressive and then began the stalking and then he called my employer and got me fired.

He definitely doesn't sound like he is acting in your child's best interest. It sounds like he is very vindictive, and he is trying to get back at you through your son.

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Customer reply replied 10 months ago
He has said it to my face that he will use Tristan, our son as a tool and weapon if he had to. When my son was only five years old he sent him home with a pocket knife and told him to stab mom while she was sleeping. He is a very evil man.

WOW. He's lucky a judge gives him any visitation time at all.

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Customer reply replied 10 months ago
He lost visitation for about a year and a half and watch the required him to only get supervised visits at a licensed facility but of course that is only done as a short-term fix and was overturned. I know the courts like to reward good behavior and I don't like supervised visits to be a long-term option but in this case it was necessary. Just because he showed up for the supervised visits doesn't suddenly mean he's a good person or a good father.

No, I get what you're saying. Ultimately as a parent you have to do what you feel is best.

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Customer reply replied 10 months ago
I guess I'm trying to figure out how to handle this with my current attorney. He is not exactly working for my best interest. And I think I need to take the opportunity and which I do not have a lease or a job holding me back and use that time to get out to California where I need to be and my son needs to be.

You have the right to terminate your attorney at any time. So if you wanted the 14 day extension first and then to terminate him, you could do that.

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Customer reply replied 10 months ago
That's is what I was thinking. And then let my ex-husband make the next move. If he can find the money for an attorney and calls a hearing then I will respond to the hearing.
Customer reply replied 10 months ago
I will have to fly out for the hearing and or final hearing but that is well worth it to me from my perspective.
If it means a fresh start, I can understand that.
RobertJDFL
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Customer reply replied 10 months ago
Thank you so much! Appreciate your help.
Customer reply replied 10 months ago
Robert,I tried to ask some further/continuing questions on my ongoing legal matter just a short while ago and though I got some responses from someone through The JustAnswer's app, however I am hoping that perhaps a second opinion will help me. Especially since you have a little background from our prior conversations that perhaps you can still read?
Customer reply replied 10 months ago
The conversation is as follows:
Customer reply replied 10 months ago
Hi,
I just asked a question on JustAnswer.com. Please check out my recent conversation with a Lawyer on JustAnswer.com.Question:You: I Received a notice of being sued by attorney general on/about 07.26.2017. I am the custodial parent of an 11-year-old autistic son. Father is the noncustodial parent that is required to pay child support According to our current custody agreement. We divorced about seven years ago with primary custody being awarded to me and father only receives visitation. Even though the court documents state that we have joint custody he, I have been awarded all decision-making abilities for the child since father has been found guilty of neglect and abuse in the past. I make all decisions regarding the child's residence, health, education, and physical or emotional needs. In the last seven years of being divorced, father has tried everything in his power to avoid paying any child support. He would rather pay for expensive attorneys to try to get out of the child support obligation, however, in court he has only gotten the child support increased instead of removed like he wanted. 1.5 years ago we went to court in which he had sued me asking to reduce the child support. and the legal process a request forn garnishing his medical records and with his testimony on the stand the judge actually increased his child some more dramatically because he was refusing to pay, my child has special needs, and he was refusing to pay 1/2 of my sons after school daycare. In addition he was refusing to keep just standard medical insurance for my son even though it was available to him at no cost through the military/army.You: Sorry… The message sent before I could finish and edit.Michael J, Esq.: Hello and thank you for contacting JustAnswer. My name is Michael; I look forward to assisting you today. By continuing, you acknowledge that I am not providing legal advice and can only comment on the law in general. I'm sorry to hear about your situation. What legal question do you have regarding this child support issue? Thanks! MichaelYou: Due to a life/death situation in which father was extremely abusive and neglectful to my son on/about five weeks ago, I was forced to get an emergency restraining order and an emergency no visitation order. We have an initial hearing scheduled for Wednesday, September 13, 2017 because the emergency restraining order expires after 14 days? (Or at least that is what I think… I am not sure… If you can advise me on that that would be great) My point is that I notify the attorney general that the hearing was being held in family law court on September 13 for the matter of Cassidy and also child support arrears of over $12,000. In addition father has not maintained the medical insurance required for my son. My main question is how do I get the Attorney General to drop their case Schedule for tomorrow September 12th so that I can just have everything heard in the initial hearing for the 13th? I have tried calling them and I cannot get through and I sent an official notice regarding the new case being brought to court several weeks ago.Michael J, Esq.: Please explain what the attorney general case is. Thanks.You: My ex-husband called the attorney general to request that the child support rep be reduced to $0.00because he thinks that if he quits his job he can get out of paying child support. They asked him to fill out some paperwork and told him that they would allow him to have a hearing in court to re-assess the amount of child support. I then got the paperwork and was served stating " suit for modification of support order and motion to confirm support arrearage."You: 1st pageMichael J, Esq.: Okay, and you're asking if you can get the AG to drop their case which is being brought on behalf of the father because you have an arrears case already set?You: Doc 2You: YesYou: It ridiculous to use the services of the attorney general when we already have an existing family law matter

I see you opened up a new question, so I replied to you there, if you want to just continue the thread there.

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DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

DISCLAIMER: Answers from Experts on JustAnswer are not substitutes for the advice of an attorney. JustAnswer is a public forum and questions and responses are not private or confidential or protected by the attorney-client privilege. The Expert above is not your attorney, and the response above is not legal advice. You should not read this response to propose specific action or address specific circumstances, but only to give you a sense of general principles of law that might affect the situation you describe. Application of these general principles to particular circumstances must be done by a lawyer who has spoken with you in confidence, learned all relevant information, and explored various options. Before acting on these general principles, you should hire a lawyer licensed to practice law in the jurisdiction to which your question pertains.

The responses above are from individual Experts, not JustAnswer. The site and services are provided “as is”. To view the verified credential of an Expert, click on the “Verified” symbol in the Expert’s profile. This site is not for emergency questions which should be directed immediately by telephone or in-person to qualified professionals. Please carefully read the Terms of Service (last updated February 8, 2012).

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