Consult a Fathers Rights Attorney When Assistance Needed

Video Transcribed: My name is Brian L. Jackson, and I’m an Oklahoma Father’s Rights attorney with Dads.Law, we protect fathers’ rights in Oklahoma. I want to talk a little bit today about jurisdictional issues and your custody case. So what should you do if your ex takes off out of state and immediately goes and file something, either paternity or a divorce in the new state?

Well, a couple of things to be aware of, there are … all states have jurisdictional rules. Now, if your ex came here, that is to Oklahoma, in order for the case, a custody case to be heard in Oklahoma, she would first have to establish the children’s residency in Oklahoma.

Now the particulars of the rules depend on what type of custody case we’re talking about. If you’re talking divorce, then you have to have six months of state residency before you can file for divorce in Oklahoma. Now legal separation is a little different because you don’t have that.

You just have to be a resident. So you have to be a resident in good faith, but you still have to comply with The Uniform Child Custody Jurisdiction Act. And The Uniform Child Custody Jurisdiction Act requires that in order for the court to rule on custody, there has to be the child has to have residency in-state, which still has that six-month rule.

So basically what you do in that situation, if you are dealing with a scenario where she has left the state and just recently filed something, is you need to get a lawyer involved and they’re going to file a type of motion, called a motion to dismiss for a lack of subject matter jurisdiction.

Basically what you’re telling the court in that motion is that, well, you really can’t hear this case court because you don’t have authority over the subject of the litigation. That is the children.

And it usually is a good idea to get fairly quickly after it and file something in your home state, where the children do live, because it’s going to be a lot harder to persuade a judge to boot the case here at a court if there’s nothing filed in the other state because they’re going to feel that something needs to be done.

So, one important thing to bear in mind with dealing with these situations is you really want to get after filing something on your own in the other state. There’s also a separate argument that can also be raised in these cases called Forum non-conveniens.

What that means basically is even if the court has jurisdiction, it may not be a good forum for hearing it anyway, because, for example, there are witnesses that would be needed that are easier to get to the other court, because records, necessary evidence is closer to the other court, et cetera.

Forum inconvenient is discretionary, whereas subject matter jurisdiction is not. If this court lacks subject matter jurisdiction, the court cannot proceed. You can’t waive it. It’s not discretionary. Lack of subject matter jurisdiction means basically that that court can’t do anything and has to dismiss. Forum inconvenient is more discretionary. It’s basically saying, well, yeah, you could hear it here, but it’s really not a good forum, for these reasons.

And that’s a little bit, it’s a bit different than a jurisdictional argument, but it’s also something that can be raised. The most important thing about this though is, you really need to make sure to talk to your … You need an attorney, but you need to talk to your attorney about these arguments upfront because while jurisdiction can’t be waived on a subject matter jurisdiction, a Forum inconvenient argument needs to be raised immediately, or it’s waived.

The same is also true, by the way, like if you weren’t properly served, for example, let’s say that she tries to serve you herself, or let’s say that you get something in regular mail or something of that nature.

And as absurd as that may sound, that happens more often than you think. That’s called an objection to service. And in that situation again, you want to make sure you raise that immediately because otherwise it’s waived. So you really need to make sure that you don’t show up to court and ask for affirmative relief until these types of arguments have been addressed.

And when I say affirmative relief, it’s things like you don’t show up and say, “Hey, I want a temporary order.” Because many of these types of arguments with the exception of subject matter jurisdiction will go right out the window if you don’t raise them immediately.

So it’s important to make sure that whoever’s representing you, or if you’re going to represent yourself, that you get after those arguments immediately. So you don’t waive them. And guys, if you are dealing with a situation where you don’t live in Oklahoma, and somebody’s filed a custody case on you in Oklahoma, then you need to get after that right away. And you should go to dads.law. I’d love to help you out. At dads.law, dads are not disposable. My name is Brian L. Jackson and I’m an Oklahoma father’s rights attorney.