email address and helpful information

Desiree:

It seems quite clear that verbal correspondence is not going to work so I'd much prefer that matters that are time critical be addressed via email (unless it is something very time critical, in which case telephone will have to suffice). I'm referring to matters pertaining to the case in California. Obviously, I would prefer to deal with Goldfarb on the Arizona case.

If possible I would prefer if you retain an attorney to handle the California case as that will make things much easier for me. If you are able to do so please let me know their contact information as soon as possible.

Also, please provide me an email address I can use to communicate with you regarding the California case because I don't think it's appropriate to use your work address for personal communication.

Now, for your information, here are some links that may be helpful for you:

The following are the Arizona Revised Statutes that are relevant (there are corresponding statutes in the California Family Code)

• http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/25/01002.htm&Title=25&DocType=ARS Provides the definition of "home state"
• http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/25/01031.htm&Title=25&DocType=ARS Provides that the child's home state has exclusive jurisdiction to make custody determinations
• http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/25/01036.htm&Title=25&DocType=ARS Provides that Arizona lacks jurisdiction when proceedings are already commenced in another state
• http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/25/01038.htm&Title=25&DocType=ARS Provides that the court shall not exercise its jurisdiction if the only reason it would have jurisdiction is due to the invoking party's (you) misconduct (for example, a parent takes the child from his home state in order to commence new proceedings in the other state)

Here are two Arizona cases that help to clarify the issue of home state and jurisdiction:

• Welch-Doden v. Roberts http://statecasefiles.justia.com/documents/arizona/court-of-appeals-division-one-published/sa010246.pdf

  Welch-Doden holds that home state jurisdiction is pre-eminent and precludes the state which is not the child's home state from considering the matter, even when there is a question of the best interest of the child. The mother argued that before deciding Arizona lacked jurisdiction because the child's home state was Oklahoma it should have considered the best interests of the child. The court ruled that it was for Oklahoma to consider the best interest of the child - because Arizona lacked subject matter jurisdiction. Welch-Doden also holds that it is the home state of the child that is relevant - not the parents. The fact that both parents may have been in Arizona is irrelevant. In particular, consider paragraph 41 of the court's opinion.

• Fuller v. Martin azcourts.gov/Portals/89/memod/CV/CV100228.pdf

  In Fuller the court held that it lacked jurisdiction to modify a custody order (which was issued by Georgia) because Arizona was not the child's home state at the time the father filed the petition to modify.

• You may also want to look into the Parental Kidnapping Prevention Act (PKPA). www.vaw.umn.edu/documents/pkpa/pkpa.pdf

This evening you made some reference to the fact that you're in a better financial postition than me right now and you hinted that you might try to use that in your favor before the court. Actually, the court will not take the finances of the parents into account when considering custody. All that would do is open the door for the court to consider imposing child support obligations on you.

And, regarding the matter of recording or monitoring Gabriel's telephone calls, please see:

• California Penal Code section 631 http://www.leginfo.ca.gov/cgi- bin/displaycode?section=pen&group=00001-01000&file=630-638 Which provides that it is a felony to record or listen to any telephone call without the consent of all parties to the call, punishable by up to one year in prison.
• Arizona Revised Statute section 13-3005 http://www.azleg.state.az.us/ars/13/03005.htm Which provides that it is a felony to record or listen to any telephone call without the consent of at least one of the parties, punishable by up to 2.5 years in prison.

It is not my intention or desire to prosecute you criminally, though. I just want Gabriel to be able to talk to me freely and openly without having to worry about what he says because he's scared you might hear it. Also, any reasonable person would agree that it's just plain inappropriate!

You also keep saying the case has been "domesticated" to Arizona. This is not my area of expertise but it seems that only judgements and orders can be "domesticated" - for the purpose of enforcement. See, in order to transfer a case from one state to another you would require the permission of the original court. And no such motion was filed in California.

And, you keep insisting the case in California is closed. Actually, if you check the Los Angeles Superior Court web site you'll see it's most certainly still before the court. Of course, it's not really relevant to whether or not you can commence the new case in Arizona due to the lack of jurisdiction based on Gabriel's home state not being Arizona. Even if the case in California was not pending Arizona would still not have jurisdiction.
http://lasuperiorcourt.org/civilcasesummarynet/ui/?CT=FA

Today you stated that you had obtained an ex parte order prohibiting me from taking Gabriel for my two weeks. No hearing, and that order, are not listed on the Superior Court of Arizona's web site.
http://www.superiorcourt.maricopa.gov/docket/FamilyCourtCases/caseSearch.asp

I would think that your attorney should have advised you of these matters. If he hasn't and if he's been leading you to believe that Arizona has jurisdiction because Gabriel is there now, or because both parents happened to be residing there for any duration of time (though, in my case, against my will) then I would question whether he's really serving your interests. Of course, I expect you're going to forward a copy of this email to him - I'd be very curious to know what his response is. Your attorney, like all of the opposing attorneys I've dealt with over the last 4 years, seems to believe that anyone who is not a member of the bar cannot possibly know anything about the law. I would have sent a copy to him directly but I don't have his email address.

And finally, my intention with this email is nothing more than to inform you of what the relevant laws really are. Based on what you keep saying I get the impression someone (probably your attorney) is merely telling you what you want to hear rather than presenting you a realistic picture of the situation.

So, that's it for now. If you have any questions about law let me know. At least I'll give you complete and honest answers.

Good evening.