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I do have a follow up question. Can I take the case back to…

I do have a follow...
I do have a follow up question. Can I take the case back to the court of appeals when the original case was in 2008, and my appeal was won in June of 2009? I thought the time limit for filing appeal had passed. I was furious with my appellate attorney for only appealing the contempt and court costs, and not the entire ruling regarding visitation. I agreed with every suggestion you made, except that I am unwilling to turn my child into a spy against her own father. I feel pretty confident that in any other court I would have justice, so my focus has been on attempting to force a change in jurisdiction. I am not sure, but it seems as if the UCCJEA supports her decision to retain jurisdiction. I know that my Arkansas attorney is unwilling to pursue any action against the judge or opposing counsel (she said so directly), but can my Texas attorney help in this area? Thank you again!
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Answered in 18 minutes by:
6/26/2010
Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 48,882
Experience: 30 years in civil, probate, real estate, elder law
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Thanks for your question.I am sorry but the time to appeal this decision has passed.You may certainly file grievance about your lawyer here with the state.And you may well still have a legal malpractice case if your lawyer failed to notify you of your rights here in this matter.You will need local lawyer to file such a lawsuit.

Complain here..

http://deltabravo.net/custody/atty-complaint.php



Edited by RayAnswers on 6/26/2010 at 5:57 PM EST
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PlotinusLaw
PlotinusLaw, Attorney
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Satisfied Customers: 738
Experience: 14 years of experience in all areas of family law.
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With regard to your first question, if the issue of visitation was not raised in the original appeal, you will most likely be time-barred from appealing that after the deadline. The general rule with appeals is that, you have 30 days to appeal a final order of the court. If you are outside of the 30 days, you no longer have the right to appeal but you can request that the appeals court hear the appeal by consent. They may grant the request, however, I would not get your hopes up.

I am not surprised to hear that your current attorney does not want to go after the judge or opposing counsel because she has other cases to be heard in front of that judge, and, as you have learned by bitter experience, family law judges have far too much authority and discretion.

Your Texas attorney can act on your behalf in this matter if you can afford the expense. He must either be licensed in the State of Arkansas, or, file a motion pro hac vice which will give him essentially temporary permission to practice in the state of Arkansas for your particular case. As far as bringing an action against the judge is concerned, given that you spent 20 days in jail, you may be able to claim enough in damages to bring the case in federal court-$75,000 is the minimum the last time I checked.

As far as the jurisdictional issue is concerned, because you lived in Texas for a year or prior to your ex-husbands motion for a change of custody, Texas was able to assert jurisdiction over the custody issue. Indeed, is that it is where the child resides and you still have sole physical custody of the child, pursuant to their own statute, as well as the UCCJEA, they would have been able to assert jurisdiction. Here is the URL to the entire act as adopted by the State of Texas:http://www.statutes.legis.state.tx.us/Docs/FA/htm/FA.152.htm
However, because the modification was filed in Arkansas, a Texas judge is likely to conclude that Arkansas still retains exclusive custodial jurisdiction.

I want you and your Texas attorney to look at the following section of the act:

Sec. 152.203. JURISDICTION TO MODIFY DETERMINATION. Except as otherwise provided in Section 152.204, a court of this state may not modify a child custody determination made by a court of another state unless a court of this state has jurisdiction to make an initial determination under Section 152.201(a)(1) or (2) and:

(1) the court of the other state determines it no longer has exclusive continuing jurisdiction under Section 152.202 or that a court of this state would be a more convenient forum under Section 152.207; or

(2) a court of this state or a court of the other state determines that the child, the child's parents, and any person acting as a parent do not presently reside in the other state.

My interpretation of the statute is that Texas cannot assume jurisdiction. However, you may be able to get a ruling pursuant to the following section entitled Temporary Emergency Jurisdiction:

Sec. 152.204. TEMPORARY EMERGENCY JURISDICTION. (a) A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

At the very least, should the need arise to go back to court because of new evidence of inappropriate conduct, you might be able to get your foot in the door in Texas with this provision of the act.


I hope that you have found this information helpful. If there is something that I have not explained clearly, or, if you are dissatisfied with the answer, please don't hesitate to ask a follow-up question. Also, please remember to click on the green "accept" button so that I may receive credit for this answer as well as any comments or feedback you may have. Your question will not close, and you will still have the opportunity to follow-up if needed. I wish you the best of luck in pursuing your case. When the dust settles, if you still don't have relief in this matter, the court of last resort is always the media. You can take your story to both the local and national media outlets and see to it that this judge never sits on the bench again.

This is information only, not legal advice. No attorney-client relationship has been created. Please consult an attorney in your state for legal advice regarding your matter.
PlotinusLaw
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