QUESTION
Can I have my custody case dismissed due to lack of jurisdiction prior to filing documentation?
Asked on Feb 23rd, 2013 on Child Custody - Colorado
More details to this question:
My wife left the state of Colorado with my son on August 25, 2012! She went to Georgia to live and to start a new life! She left my son in Brunswick, GA in August and went to live in Marietta, GA with her sister! I was unaware that he was living with his grandparents until her brother told me in October that he was living with them in Brunswick, GA! I was sending money to her via money order to the address I thought her and my son resided together, but really it was her mom who was getting the money from me to take care of him! I took leave in January of 2013 to take physical custody of my son, being that his mom didn't show any interest of getting him any time soon. We flew back to Colorado on January 12, 2013. On or about a week and a half later she filed for a divorce in Cobb County, GA, which she wasn't there for six months prior to filing, and about a week after that she filed for an emergency hearing and was granted by the court since I was serving active duty in the military and couldn't make it because the same day I received the papers was the same day I had to appear in court! Both times, I was served improperly by my first sergeant leaving the documents on my office desk! I have an attorney in Georgia to fight this battle in the state of Georgia! He recommended that I should hire an attorney in Colorado to dismiss the case for reasons of lack of jurisdiction prior to filing both documents, being improperly served and my child was born on August 7th 2011 and remain here until August 25 2012, which he spent well over six months and this is his home of record! Feb 23, 2013, I was finally served by someone who was appointed by the court to do so with a summons to appear in Georgia for this custody battle! My wife now has jurisdiction in Cobb County because our court date was moved to March 19, 2013! May I dismiss this case in Georgia under the uccjea, that my son is a resident here and never been a resident of Georgia.
1 ANSWER
Probate Law Attorney serving Colorado Springs, CO
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John E. Kirchner
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Your question and your details are confusing. If dismissal is appropriate, it appears that would apply only to the GA case because there is nothing filed yet in CO to be dismissed. The facts you relate don't appear to support dismissal in GA, but you need to rely on the GA attorney to handle that issue. Since it appears the mother and child have been gone for more than 6 months it doesn't appear CO would have jurisdiction under UCCJEA because nothing was filed in CO before the 6 month ran out. CO also may not have jurisdiction even for the divorce unless you are a legal resident of Colorado; most active duty military are NOT legal residents unless your LES shows you are paying CO state income tax. It would be best for your GA lawyer to talk to an attorney in CO to determine what can/needs to be done.
Answered on Feb 26th, 2013 at 3:27 PM