Submitted by Gary

To the Commonwealth of Virginia and members of the Virginia judiciary, and any others to whom it may pertain:

The Commonwealth of Virginia has asserted and exercised subject matter jurisdiction over child custody when the elements necessary to have subject matter jurisdiction were not present. This deficiency on the part of the commonwealth has been raised at every opportunity in every level of court within Virginia, including the JDR, the circuit court, and the Virginia Supreme court, and the challenge to Virginia’s exercise of subject matter jurisdiction has been left unanswered. Each court summarily dismissed the challenge, based upon appellate rules that cannot apply because of the presumptive lack of subject matter jurisdiction, or other inappropriate excuses to fail to answer the challenge to the assertion and exercise by Virginia of subject matter jurisdiction. The default position in any case requiring subject matter jurisdiction is that it presumptively does not exist, and must be shown to exist. The burden of proof rests legally squarely, and this is well settled, upon those who would assert that subject matter jurisdiction. The burden of proof in asserting, and certainly in exercising subject matter jurisdiction in it’s various actions falls upon the commonwealth of Virginia. The evidence of the legal requirements for the exercise of subject matter jurisdiction must arise from the record and the facts. Virginia’s continued refusal to address this challenge to its assertion and exercise of subject matter jurisdiction means de facto that Virginia has proffered no evidence. Lacking any evidence within the record of the case and offering no facts or evidence in addition to the record in the case, there is a legal presumption that subject matter jurisdiction does not exist.

The evidence in the case is that subject matter jurisdiction to enter the orders that Virginia enforced, then registered, then modified was patently and unambiguously lacking, and no evidence suggest even remotely otherwise.

Subject matter jurisdiction is special, limited jurisdiction, and the authority of a parent to make all determinations regarding their own child is a constitutionally guaranteed retained right that shall not be presumed upon without just cause, due process of law and authority granted within the law. Subject matter jurisdiction is not presumed but must be proven to exist, with all the required elements present at all times, prior to its exercise.

At the time Virginia first exercised subject matter jurisdiction in this case, in March 2004, New York State properly had subject matter jurisdiction of the child custody matters involving AH and had issued modification orders, based upon properly having ascertained and exercised subject matter jurisdiction. The New York custody order was entered on Feb 13th 2004, and provided the father with sole custody and visitation of AH. Upon the entrance of the New York Order, and being served with a copy of it by and through her attorney, Ms Kulagina fled to North Carolina with AH, and procured a child custody decree with a petition in the form of a proposed order, composed by mother’s NC attorney and filed in court Feb 17th 2004, which was signed into an order the very same day. The order entered Feb 17th 2004 by NC is VOID AB INITIO, as NC lacked subject matter jurisdiction to modify the New York order of Feb 13th 2004. This all undertaken by the mother because and despite the mother and her attorney each had copies of the New York child custody decree.

The North Carolina order of 2/17/2004 states no basis for its exercise of subject matter jurisdiction, and does contain statements asserting that North Carolina is not the home state of the child and that neither party nor the minor child nor any other person acting as parent the resided in North Carolina. In a subsequent order, issued may 5th 2004 by the same judge in the same court in NC, he plainly stated that North Carolina did not have subject matter jurisdiction, specifically because neither of the parents nor the minor child resided in North Carolina, and as that had been the finding of the New York court and the North Carolina court as of October 9th 2003, there plainly had not been subject matter jurisdiction in North Carolina over the child custody since North Carolina relinquished continuing exclusive jurisdiction to modify the initial and subsequent child custody orders it had lawfully entered while at least one parent remained a resident of North Carolina.

The North Carolina judge, in stating on May 5 2004 why North Carolina did not have subject matter jurisdiction, was correctly reiterating and reciting the overlapping requirements of the PKPA and the UCCJEA which have both made it clear that subject matter jurisdiction is lost when no parent nor persons acting as parents nor the minor child continues to reside in that state. State law further requires a finding by that court or another court that neither parent nor person acting as parent nor the minor child continue to reside in NC, and upon such finding, that state relinquishes continuing exclusive jurisdiction of the child custody. Both New York and North Carolina made the finding that event occurred on Oct 8th 2003. The New York court never made a finding that NC or VA was a more convenient forum, and had continuing exclusive jurisdiction over the child custody.

Conclusion, the North Carolina court acted without subject matter jurisdiction in entering the order of Feb 17th 2004, and NC subsequently entered an order so stating that it had acted without subject matter jurisdiction to enter a child custody decree on Feb 17th 2004.

However, before the North Carolina court issue its May 5 2004 order stating that North Carolina lacked subject matter jurisdiction, the mother sought enforcement of the Feb 17th void ab initio order from the Virginia JDR on Mar 22 2004, by filing an emergency custody petition which was heard and dismissed with a notation , “ no basis for relief”. Not daunted, the mother approached a different judge within the same JDR on the very next day with the same petition, and was granted a pick up order for the child. The emergency custody and pickup order were attained by the mother’s fraud upon the court in not disclosing that the motion had been denied on her motion the previous day. The emergency custody order, effectively granted enforcement of the void Feb 17th 2004 void ab initio NC order, was itself void for the simple fact that the first prerequisite of the VA law, “that the child must be present in the commonwealth’, was not met. AH was in New York, at her father’s home, lawfully in the custody of the father under the New York State child custody order of 2/13/2004. Nevertheless, mother obtained the void emergency custody order of Virginia granting enforcement of the void North Carolina order, and through the aid of specific individuals within the Fairfax Police Department, requested the father be arrested in his home on a Friday afternoon, long enough for mother to snatch the child away and secrete her within mother’s Washington DC residence before the father could post bail or be heard on the following Monday to prevent the child abduction. (yes, mother testified under oath in a NC deposition that she was in fact residing in Washington DC). The mother then withheld custody, visitation and all contact with the child with no lawful excuse.

Mother then filed a petition in VA to register the void ab initio NC order of Feb 17th 2004, and this came on for hearing on may 26 2004. Respondent father responded by filing a response and objection to the registration of that order in which all of the aforesaid facts were stated. All, except for one: that being that at the time respondent father filed his response and objections, father was unaware that the North Carolina court had issued a subsequent order may 5 2004 in which the same judge stated why North Carolina lacked subject matter jurisdiction to have made the Feb 17th 2004 order now sought to be registered in VA.

The Virginia court was apprised of the New York State case and that New York State had entered an order and had continuing exclusive jurisdiction over the matter, but the Virginia court chose to ignore this even though told and shown the New York petitions and orders. The Virginia judge who first issued the emergency custody order in march 2004, also ‘heard’ the hearing to register the order she had already illegally allowed enforcement of. The court also ignored the VA law requiring it to communicate with the New York court and make and keep and distribute to the parties a timely record of such communications on tangible media in perceivable form.

Significantly, the mother also failed to provide the Virginia court with a record of any and all prior proceedings that might affect the courts understanding and determination of whether or not the order sought to be registered had been written and entered by a court of a state having jurisdiction to do so. In this case, the required affidavits, required by VA law to be submitted by plaintiff before VA makes an informed decision, would have allowed the VA court to determine that New York State was properly exercising subject matter jurisdiction and held continuing exclusive jurisdiction at the time NC entered the Feb 17th 2004 order. Nevertheless, the VA court was made aware of the New York proceedings, took notice of the father’s claim of same, and simply ignored the obligation to communicate with the New York court. The order registering the NC void order in VA states that the court was told to look to New York, and refused to follow the law in that regard. The required affidavits are not found in the record of the court in VA because although they are required under the law at the time of the first filing by a party, they are absent from the record to this day because these disclosures would have made it apparent to VA that VA was then not qualified to hear and must dismiss mothers claim.

Regardless of the missing required affidavits, regardless of father’s written objection, regardless of the VA court having chosen to ignore the requirement to communicate with the New York court, and regardless of the VA requirement to first determine if the order sought to be registered was written by a state having jurisdiction to write the order, VA registered the void ab initio order it had already enforced illegally. VA now was covering it’s first bad actions with additional bad actions. In response, father wrote a letter to then chief judge of theJDR, Gail Carr, and the Virginia judge who registered the void NC order was recused.

Mother then filed to modify the void NC order by having it registered in VA and then filing to modify that order in VA. Mother petitioned the JDR to modify the void NC order. Prior to the hearing on modification, father drafted and filed with the court a letter stating how the Virginia judge had failed to follow the law in determining of it should register the void ab initio order, and the degree of impartiality witnessed which led to a void ab initio order being ‘given life’ via this. This JDR judge was then recused.

Father argued before the next VA JDR judge the VA had no authority to modify the New York State standing order, and that it could not modify the NC void order. The judge responded with intimidation, stating that the father had better ‘just get over it’ because this court intended to modify the order. This was said even before moving to the mother’s petition or conducting a hearing, and then it was done as it had been said. VA modified the NC void ab initio order, thereby converting the order to a VA order, and making it appear that Virginia had written an original valid order.

Thus, the Virginia JDR was informed and challenged at every step, and the VA court failed to demonstrate it had subject matter jurisdiction at any point. It entered this case when it was not legally allowed to enter into the private lives of the family and has imposed it’s will without legal foundation and is liable for each and every day this child has been missing from fathers home, at the standard federal rate of $5000.00 per day for each day the child is gone.

The child custody order entered by New York State on Feb 13 2004 has subsequently been registered by the North Carolina court, further affirming that NYS was properly exercising subject matter jurisdiction in Feb 2004 and North Carolina was not. In the face and weight of such evidence, Virginia has an enormous burden of proof to the contrary to establish before the federal court under which this will be reviewed that it had any business hearing any of this case and that it didn’t violate the constitutional rights of those involved, which opportunity to be heard VA has been given. It is a burden of proof which cannot be met.

For this reason, Virginia has refused to offer or produce any response to the challenge to its exercise of subject matter jurisdiction. Therefore, unless and until VA shall present incontrovertible evidence that it lawfully exercised subject matter jurisdiction, and present evidence that it thoroughly examined the order of 2/17/2004 NC and facts to determine if it had been written by a state having subject matter jurisdiction, every order stemming from these actions are also void ab initio, and Virginia must give full faith and credit to the sole custody order, and effectuate the immediate return of the child to her father. Furthermore, VA must decline any future exercise of jurisdiction if it should find any basis that it could exercise it, based upon the mothers unjustifiable conduct in duping the court, in feloniously kidnapping a child in which a prior court found the mother criminally willfully negligent on multiple counts in the care of the child, and in conducting her affairs fraudulently inducing the aid of various Fairfax local ‘officials’.

The mother is reportedly with AH in Virginia, and has no legal order awarding custody or visitation to her of AH. In May 2007, mother, with AH in her custody, filed a report with Fairfax Police Department and the National Center for Missing and Exploited Children, claiming that AH had been abducted. Mother then filed an petition for emergency custody with the JDR on May 16th 2007. An emergency custody order was issued, despite, again, failing to determine the “child is present in the Commonwealth”, while fully aware that the child had been picked up by father the day AFTER she filed her initial complaint with FFX PD and NCMEC. That is, she claimed to authorities the child had been abducted on May 11, 2007, and father picked up the child from mother on May 12th 2007. Father returned with AH to their home in California, carrying the sole custody order from New York, North Carolina, California. AH was not in fact in Virginia when the May 16th emergency custody order was issued, as testified to by FFX police, who testified that FFX police was aware that AH had gone to California, describing in detail the times, dates, and destinations of the flights, which all before May 14th, well before the petition for emergency custody and obviously prior to the issuance of said emergency custody order.

The mother has since used the void temporary Emergency Custody Order VA 5/16/2007 as the basis for obtaining a new passport for AH and to completely thwart the lawful custody of AH inuring to the father. Father has not seen nor heard from nor had contact with nor had news regarding AH since June 7 2007, when mother, again with the assistance of FFX PD, kidnapped AH from father’s home in California.

On information and belief, mother and mother’s current husband have adopted AH, by bringing further fraud upon unknown courts, and at the same time, continues to demand payment of child support on behalf of AH via the VA DCSE.

To this day the mother is still secreting the child and has no lawful order to allow mother any custody or visitation. The court and the Fairfax ‘officials’ are hereby put on notice of all these things herein, and are directed to immediately recover the child and return her to her only lawful custodian.

If the FFX JDR has any evidence of it having communicated with the court in New York and promptly having made that communication available to the parties, or if it has any evidence that can overcome the legal presumption that it had not subject matter jurisdiction, or any evidence that the emergency custody order of VA 2007 was exempt from the requirement that the child be present in the commonwealth, please forward with a complete explanation to Attorney John Bauserman in FFX county VA within 10 days of this letter. Failing that, it shall continue to be presumed that VA lacked and lacks subject matter jurisdiction over each and every order it has issued in regards to custody of AH. Barring that, let this court stand aid in the return of this child, and cooperate with Federal law enforcement to immediately effect the return of AH to her father.

Your immediate response is required. You may contact father’s attorney, John Bauserman of Fairfax VA in the event you need legal guidance to understand what has been said and, with any communications, and to work with him to safely return AH to me.