Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:
- Can I move the kids to a different school district if they want to?
- Can she later seek alimony if she waived her right to it in the divorce decree?
- I owe more in back child support than I make in a year. What should I do?
- Am I able to block my ex from getting me a DNA test to prove the child isn't mine?
- How can I revise my parenting plan if the visitation schedule no longer works because my wife and daughters moved out of state?
My children’s mother and I share joint legal and physical custody in Indiana of our two children. I have remarried and want our children to join my stepson in a much better school that is not far from where my children live. The schools are much better than the ones they're currently in and my children want to attend them.
What rights do the children have and do I have as their father to open this door for them?
First, I must preface that I do not practice in your state so I can only speak to general practice. Therefore, I have to advise you that you should consult a domestic litigation attorney licensed in Indiana regarding your question as the laws in your state may differ from what I refer to below. Cordell & Cordell has many attorneys licensed and located in Indiana who would be happy to help you.
If you and your ex-wife have joint legal custody, you both are supposed to make all decisions regarding your children’s education together. However, your children do not have the right so to speak to make these types of decisions. If you and your ex-wife are unable to come to an agreement, you should refer to your divorce decree to determine whether there are any provisions which detail what you and your ex-wife are required to do to attempt to resolve custody disagreements. For example, many decrees have a provision where the parties are required to attend mediation to attempt to resolve the conflict prior to either party filing a motion with the Court. In addition to reviewing your decree, your attorney will also be able to tell you if there are any local rules which require you and your ex to attempt alternative dispute resolution. If you and your ex are unable to come to an agreement, you may be able to petition the Court to make a ruling on where the children should go to school. You and your attorney will be able to discuss the procedures and potential outcomes for making such a motion in your jurisdiction.
In the meantime, continue to obtain information on the schools and reduce to writing why you feel that one school is better for your children over the other. You should bring this information with you to your first meeting with your attorney.
Our divorce in January was filed as an uncontested divorce with no property split and no alimony. I was informed by a friend that the divorce could be overturned if she pursues alimony because of how recent it was finalized. What is the statute of limitations on her seeking alimony?
Each state has different laws governing modifications to divorce decrees. I do not practice in New Mexico so I cannot tell you whether your wife can come back to Court and request alimony.
In many jurisdictions, once a party waives his or her right to alimony (sometimes referred to as maintenance), the decision is permanent and the party can never come back to Court to request alimony. In addition to state laws, you should also review your divorce decree to see whether there are any provisions which detail whether this was a permanent denial. It is possible that alimony may have been held open for a period of time which would allow a party to come back later if there is a substantial change in circumstances.
You need to contact a domestic litigation attorney licensed in New Mexico immediately and be sure to bring a copy of your divorce decree with you so he or she can discuss whether your ex can come back to request any modifications to the decree and specifically to come back for alimony.
Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.
Only one of my two daughters live with me. So I filed paperwork with the state of Arizona to stop child support for my one child and was notified that I owed back child support of $62,000. I only made $12,000 last year and about the same the year before that. How can this be and what should I do?
Family law is state specific. I am not licensed to practice law in Arizona and can give you some general information. I would suggest you consult a domestic litigation attorney licensed in Arizona before taking any action.
Generally, once child support accrues it is payable. There are some exceptions to this. You could certainly ask the court to forgive any arrearages that accrued while you had custody of your daughter. It sounds like even if some of the child support were forgiven, you would still owe back child support for the child who did not stay with you. It's doubtful you will be able to get around your tax return going towards that outstanding balance.
If you child support is still accruing for the child who is living with you, you need to take immediate steps to have the support order suspended.
Your first step to deal with these issues is a Petition to Modify, which would also ask for dismissal of arrearages in the prayer for relief. I would highly suggest you find an attorney to assist you.
Nancy R. Shannon, a Nebraska native, is an Associate Attorney in the Omaha, Nebraska office of Cordell & Cordell, P.C. She is licensed in the state of Nebraska where her primary practice is exclusively in the area of domestic relations. Ms. Shannon received her Bachelor of Arts degree from Doane College and her Juris Doctor from University of Nebraska – Lincoln, where she was a finalist in a Moot court competition and active in Client Counseling activities.
I'm divorced with custody of our oldest child who was born before we were married. She has custody of our other two children. She is now claiming that I am not the father of our oldest, the one I have custody of. My name is on the birth certificate. I do not recall filling out an affidavit of parentage back when the child was born. I want to block her from trying to get a DNA test done to prove the child is not mine. Do I have any options?
Yes, you probably have options.
In Michigan, your ex-wife cannot compel you to take a genetics test without a court order. Therefore, insist that she get one. Furthermore, if you share legal custody of the alleged non-biological child, you can and should object to her sending the child for a genetics test without your permission or a court order. Whether to send your child for genetics testing is a legal decision which you, if you have legal custody rights, can make.
Assuming your ex-wife will seek a court order, you have additional options. First, according to statute and case law in Michigan, there is a strong presumption that children conceived or born during the marriage are marital children; this presumption may only be rebutted by clear and convincing evidence. See, e.g., Johnson v Johnson, 93 Mich App 415; 286 NW2d 886 (1979). Without genetics testing, that is difficult. Second, signing a birth certificate raises a presumption of paternity. The signor does not also have to execute an Acknowledgment of Paternity. Third, paternity issues involving a husband in a divorce may be litigated during the divorce, see, e.g., Serafin v Serafin, 401 Mich 629; 258 NW2d 461 (1977), and, even if they are not, if the judgment of divorce states that the alleged non-biological child is a child of the marriage (e.g., by awarding legal custody), the doctrine of res judicata (“it has been decided”) bars relitigation of the issue later. This is true even if genetics testing would have proven the child is not the ex-husband’s biological child.
It is unclear to me whether your ex-wife raised paternity in your divorce. Read your judgment of divorce carefully, and look for paragraphs identifying “the children” and including your alleged non-biological child. If you see those paragraphs, chances are res judicata bars your ex-wife from coming to court with a paternity action now to claim the child is not yours.
If your ex-wife does, however, you have another option: equity. The equitable parent doctrine allows the court to grant a third party parental rights, including payment of support, custody and parenting time, if the party considered the child to be his/hers, established a relationship with the child, “held out” that relationship as parent and child, and so forth. See, e.g. York v Morofsky, 225 Mich App 333; 571 NW2d 542 (1997).
Keep in mind that, while I am a Michigan attorney, I cannot give you advice about the laws in your home state of Michigan without a thorough consultation with you. Do not rely on this answer as establishing an attorney-client relationship, and please contact an attorney immediately for additional information unique to your case and for legal representation. Cordell & Cordell, P.C. does practice in Michigan, and we would be happy to assist you. Thank you for submitting your question to Cordell & Cordell, P.C.
Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.
My wife has moved with my daughters to Texas from Montana without my consent or knowledge. I got a parenting plan set up under the impression that she and the girls would be moving back to Montana after my wife's 6-month job stint in Texas. So the schedule was set up that I'd have them every other weekend, alternating holidays and over the summer.
That was 7 years ago, and my wife and daughters haven't moved back. So there's no way I can afford to get my daughters for my allotted time (except for summer visits) since they are still in Texas. How can I revise my parenting plan to have them stay with me longer when we're actually able to see each other?
I must first preface my answer by stating that I am not licensed in Montana and each case will vary based upon the facts of the case and the law of the state in which the case is currently being adjudicated.
Your case is like a lot of other cases out there; you and your ex-wife agree to a certain parenting schedule, but due to circumstances that were not foreseen, the current parenting schedule no longer is applicable to your life.
Fortunately, in most states the parenting schedule is always modifiable, so either parent can move the Court to modify the parenting schedule. The Court should enter an new parenting schedule that is in the best interest of the children. In your situation however, a question may arise as to what Court has jurisdiction to decide what a new parenting schedule should look like.
All states have entered a version of the Uniform Child Custody and Jurisdiction Enforcement Act (UCCJEA). These set of laws determine what Court should have jurisdiction when children are moved from a home state to a different state. Generally, the original court will have continuing and exclusive jurisdiction over all custody matters and would be the Court you would move to modify the parenting schedule.
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.