Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:

• How do I regain my parental rights?
• My ex is not fulfilling her agreed upon parenting time at all. Can I file a motion to have custody and child support changed?
• Can she use my child support to make house payments?
• During our divorce, my wife and I are living in the same house. Can she bring her boyfriend into our house when I'm not there?

Question: 

How do I regain my parental rights if I was incarcerated and I was released, but I did not get them legitimized?

Answer:

First, let me preface my answer by stating that I am not licensed in Georgia, although Cordell & Cordell, P.C. does have attorneys who are licensed in Georgia who would be happy to discuss your case with you.

Your question is a little vague as to what you are trying to establish. If by parental rights you are referring custody of your children, then you would need to file a Motion with the Court that placed your children with their current guardians requesting that you have parenting time or custody of your children.

If you are referring to regaining your parental rights because they have been terminated, then that is could be much harder and will greatly depend on the laws of your state. In some states, if a parent's rights were terminated to effectuate an adoption, then the adoption cannot be challenged after a year has passed, which means that the Order would be permanent. You should seek the assistance of an attorney in your jurisdiction immediately because there may be deadlines that you may need to meet.

Jason Bowman is an attorney in the Louisville, Kentucky office of Cordell & Cordell, P.C. He is licensed in the states of Kentucky and Texas. He received his Bachelor of Science in Business from the University of Louisville, and received his Juris Doctor from Texas Wesleyan University.

Question:  

I share joint physical and legal custody of our two children and child support is based on this. Our divorce was finalized one month ago. In the past few months, she has spent a total of 6 hours with them, not fulfilling her agreed upon parenting time at all. Should I file a motion to have custody and child support changed?

Answer:

I must start off by saying I am not licensed in Minnesota and am not familiar with their statutes. Some states have mandatory waiting periods before a party can file for modification, while others have no time period. You can ask an attorney in your area to determine what these time periods may be.

In Missouri, where I practice, Courts generally will not modify child support after a few months. The standard the Court must find is a substantial and continuing change in circumstances. This change must have occurred between the time of the judgment and the time of proposed modification. A substantial and continuing change can be based on a change in income, change in residence, or even the fact that the children have gotten older. This change must not only be significant, but must also be on-going, thus the idea behind some of the mandatory waiting periods.

Although it may be too soon to file for a modification, it is not too soon to start collecting evidence. You can keep a journal of the time you spend with your children and the time they spend with their mother. You can also keep track of how much you are spending on things like food, clothing, and other essentials you would normally be splitting. You should also continue to follow the parenting plan as much as you can, and enjoy the extra time you get to spend with your children when their mom doesn’t pick them up.

Keep in mind that I am a Missouri attorney and cannot give you detailed advice about the laws in Minnesota. I can only give you general information in this answer. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation.

Question:

Can she use my child support to make house payments?

Answer:

The short answer is yes. It is a common misunderstanding that child support payments must go directly to “stuff” for the children. One way of looking at child support is more like a reimbursement to the custodial parent for money that the custodial parent spent taking care of the child, which, but for the divorce, the non-custodial parent normally would have been contributing to the child’s welfare. This includes money to put a roof over the child’s head.

If an ex spouse is neglecting the child, however, and spending child support money frivolously, that may be cause for a motion to modify. Normally using money to keep a roof over the child’s head would not be considered frivolous.

However, because I do not know all the facts of your case, I cannot give you legal advice but can only answer your question generally. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation. Cordell and Cordell, P.C. has many attorneys in Missouri who would be glad to discuss your case if you so choose.

William Halaz, III is a Staff Attorney in the Arnold, Missouri office of Cordell & Cordell, P.C. Mr. Halaz is licensed to practice in the state of Missouri. Mr. Halaz received his bachelor's degree in Political Science from Southeast Missouri State University. Then continuing his education, received his Juris Doctor from St. Louis University’s School of Law.

Question: 

During our divorce, my wife and I are living in the same house. Can she bring her boyfriend into my house when I'm not there to babysit my daughter?

Answer:

Probably, unless you have a court order to the contrary. I gather from your question that you do not. In most states, each parent’s physical custody rights include the right to choose who will babysit the child during that party’s time. As a matter of constitutional law, parents are presumed fit and competent to make these decisions, and, as a matter of divorce and child custody law, the court will not interfere with the decisions unless they are not in the child’s best interests.  That means, a mother could choose her boyfriend over her husband, and her divorce court will not interfere with that choice unless her husband shows it is not in their child’s best interests.

This does not mean, however, that all is lost. Try the following:

Try to Settle: The friendly, less-litigious parent often gets rewarded in the child custody case. Therefore, if you think settlement is possible, approach y our wife and try to reason with her. Explain your concerns. Ask for her agreement, in writing, to use a certain babysitter, to expose your child to her boyfriend only at certain times (or not at all), and so forth. In most states, the court will accept parents’ agreements as in their child’s best interests and enter them as court orders.

Get an Order: Ask your divorce court for a child custody order. This may be through a “motion” or a “petition,” depending on the jargon in your jurisdiction, and you may have to obtain your child’s guardian ad litem’s cooperation. Explain why your wife’s choice in babysitter – her boyfriend – is not in your child’s best interests. Your mere disapproval is usually not enough. Couple it with your availability to babysit, examples of poor care-giving from the boyfriend (is he a drinker? a smoker? loud? a poor example? unable to perform CPR? Etc.) Ask for a provision for “first right of refusal,” which means you will have the first opportunity to babysit your child during your wife’s time. Ask for a provision that names a particular babysitter, such as a neighbor or relative. And/or ask for a provision that requires each of you to notify and obtain consent from the other, which will not be unreasonably withheld, before selecting a babysitter. These are typical child custody order provisions.

Document: Be sure to document your concerns. Take pictures to support your position that the boyfriend is not a good babysitter (e.g., the boyfriend hit the children, the house in unclean while he is there, etc.) Keep a parenting time journal with the dates, locations and details of any event you think shows your wife’s boyfriend is not a good babysitter. You will need these for future reference if you do file a motion or a petition. They will refresh your memory. But, beware, writings from you may be admissible into evidence against you. Therefore, avoid nasty name-calling.

Most of all, be sure to address your concerns with your attorney. If you do not have an attorney, please consider retaining one. If you cannot afford one, ask for a payment plan or contact your state bar association for low- or no-cost legal services. An attorney can negotiate a parenting time agreement for you with language your court has accepted in past cases.

Keep in mind, I am licensed to practice law in Michigan. I cannot give you legal advice about the laws in your state, New Jersey, or case-specific information. Do not rely on this answer as establishing an attorney-client relationship. Contact an attorney in your area immediately for additional information and legal representation. Thank you for submitting a question to Cordell & Cordell, P.C.