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

• Can my wife move out and take our kids with her if we're going through a divorce?
• If my ex wife and I get remarried, and she owes back child support to me, can we get the amount reduced or voided completely?
• Can my parental rights be terminated without my permission?
• Can my ex continue to drag me back to court every two months to try and get more child support?
• My wife and son are living in another state while we're separated. When I go to visit him,         can I take him to another place as long as it's within state boundaries?
• Do I have the right to claim my child as a dependent if my ex and I have joint custody and I          pay child support?
• If I marry a woman with kids from a previous marriage and then we end up getting a divorce,          am I required to pay child support for her children?

Question:

My wife and I have a 3-year-old son. He has lived in my house (bought before we were married) since birth. My wife just filed for divorce after returning from overseas deployment for one year. She’s planning on moving out of the house. I have had POA over her finances while she was gone and was legal guardian to her 8-year-old son from a previous relationship. 

If my wife moves out and takes our 3-year-old with her, what grounds do I have to say no, that our son’s best interest is to live in this household until matters are heard by a mediator or a judge? Should I call the police if she takes our son out of my house when she moves?

Answer:

If your wife just filed for divorce, you have 20 days to respond to the Petition once you are served.  Therefore, you need to make an appointment with a domestic litigation attorney immediately. 

First, since you are married, you and your wife have equal rights to your child.  In most counties, the police will not get involved in any disputes regarding the placement of your child unless there is a Court Order.  Since the divorce has been filed, you or your wife can ask the court to set temporary custody, placement and support while the divorce is pending.  Courts generally prefer to maintain the status quo.  You may need to act quickly however because it could take weeks before a temporary order hearing may be heard. 

In the meantime, you should make sure you are preparing for a custody case.  You should keep a journal which details your interactions with your child.  The journal should be handwritten and you should make notes each day.  You should also consider what third party evidence you have that exhibits it is in your child’s best interest that you have primary placement or shared equal placement of your child.  Keep in mind others who observe your interactions with your child including daycare providers, coaches, etc.  Also be mindful that your wife may be doing the exact same thing.

You also need to discuss your premarital assets with your attorney as Wisconsin is a marital property state meaning unless you received the asset as a gift or inheritance, it is marital property.  There are arguments that can be made to have premarital property awarded to the person who purchased the property; especially in cases where the parties have a short-term marriage.  You need to meet with a domestic litigation attorney immediately to discuss your situation, the divorce process, and potential outcomes.  Cordell & Cordell has an office in Milwaukee with attorneys who would be happy to assist you.

Question: 

If my ex wife and I get remarried, and she owes back child support to the county in which we live, is it possible to get the amount reduced or voided completely?

Answer:

Each state has different laws governing child support.  I do not practice in your state so I can only speak to general practice.  You should contact a domestic litigation attorney licensed in California as your state may handle the situation differently.

Does your ex-wife owe back child support to the county or back child support to you?  If the money is owed to the state, you probably cannot void the arrears considering the money is owed to the state.  In my state, funds owing to the state are for reimbursement for services provided on behalf of the child.  This would include, but is not limited to, repayment for birthing and healthcare expenses if the child was on state assisted health insurance or for support the state paid to a foster parent who cared for the child. 

If instead she owes back child support to you and has accumulated arrears and interest to you, then you may be able to motion the Court to modify the current support order and to eliminate any outstanding arrears. 

You should contact a domestic litigation attorney to discuss your situation.  It would be important to bring your original order of support and a copy of the most recent statement from child support enforcement to the appointment.

Question: 

My friend is an unwed father. The mother is trying to terminate his parental rights to the child so that her new husband can adopt the child. My friend and the mother both just recently graduated from high school. He has limited financial resources because he is just out of high school and pays child support when he is able to. The mother doesn’t let him or his family see the child. Can his parental rights be terminated without his permission? What can he do to possibly get visitation?

Answer:

Each state has different laws governing custody, placement and support of children.  I do not practice in your state so I can only speak to general practice.  You need to contact a domestic litigation attorney licensed in your state immediately.  Cordell & Cordell has many attorneys licensed and located in Illinois who may be able to help.

If your friend is paying child support, I am assuming that he signed a Voluntary Acknowledgement of Paternity and the State or the mother pursued child support through a paternity action.  If a paternity action was filed, the Order will detail his custody and placement rights in addition to child support.  Your friend should refer to the original order immediately.  If he was awarded any periods of placement or visitation and the mother is refusing to allow him to see the child he may be able to file a motion with the Court to force her to allow him to see his child.  If the Order does not grant him any visitation with his child, he may also be able to pursue a modification of the original order if there has been a substantial change in circumstances.

At a minimum, he needs to consult an attorney regarding the potential petition to terminate his parental rights which you expect the mother will file.  Although he will have to be notified of the petition, your state likely has laws which would allow the Court to terminate his parental rights even if he does not consent to the termination.  In my state, the Court has the authority to terminate rights for a step-parent adoption if the Court finds the parent abandoned the child or never had a parent-like relationship with the child.  Your friend needs to contact an attorney immediately as actions may need to be taken right away.

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.

Question: 

My ex wife keeps taking me back to court every two months to try and get more child support out of me. I have requested DNA tests on the children, have requested a motion of modification on the child support, and have not seen or heard from my kids in over 4 years because my ex will not let me see them. 

Can she continue to drag me back to court every two months? Would she not be in contempt for not allowing me to see the kids? How do I go about getting the DNA tests when the judge will not order it?

Answer:

As with many family law questions, it is difficult to answer your question without knowing all the facts and knowing the history of the case. I can tell by your questions that there are many underlying issues in your case and that you are frustrated with how the case has progressed or has not progressed up to this point. 

In the state of Kentucky child support is always modifiable as long as there are circumstances that are substantial and continuing. In Kentucky it is presumed that if the child support obligation varies by 15% then a parent is generally entitled to a modification. It can be frustrating when one parent continually files motions before the Court, unfortunately, there is no real relief from this happening. Usually each party is allowed to present their issues to the Court. However, when one party continually runs to the Court, the Court will usually grow weary of the constant litigation if it has no merit.

With regards to your ability to see the children, if there is an order in place that gives you specific parenting time with your children and she is not letting you see your children, then she may be in Contempt of Court. However, it is your responsibility to notify the Court and to ask the Court to hold your ex-spouse in contempt for failing to follow the Order. Until you ask for the specific relief from the Court, then there is not much that the Court can do for you.

Paternity can always be a tricky issue, especially if you and the children's mother were married at the time of the birth of the children. An attorney in your jurisdiction will be able to provide specific advise with regards to the paternity of the children, once they know the specific facts and history of your case. Cordell & Cordell does practice in Kentucky.

Question: 

My wife moved out of our Ohio apartment unannounced last November, taking our son with her to live with her parents in Kentucky. Neither of us has contacted a lawyer to work out custody or visitation. I go to Kentucky every other weekend, as I can afford it, to visit my wife and son at her parents' home. Since things have seemingly become worse, I'm considering going there as I normally would, but instead of staying there I would pick up our son and take him to my parents home for the weekend. They also live in Kentucky so I wouldn't be taking our son out of state. Would I be in serious trouble if I were to do this?

Answer:

This is a question that many men have especially when there wife has moved out of the marital residence with the children and moved to a different state. Each case is fact specific, but unless there is a Court Order preventing you from removing the children from the state of Kentucky, as the children's father, you have equal rights to the children. 

If there is not a Court Order preventing you from taking the children to your parents' house, then you are well within your rights to do so. You do need to keep in mind, that although you and your spouse have not worked out Custody, if you are planning to file for divorce, you may want to talk to an attorney in Ohio, as soon as possible. 

Once your spouse resides in the state of Kentucky for 6 months, she will be allowed to file for dissolution of marriage in the state of Kentucky and you will have to be involved in the legal process in Kentucky as opposed to your home state.

Question: 

Do I have the right to claim my child as a dependent after divorce if my ex and I have joint custody and I pay child support?

Answer:

First let me preface my answer by stating that I am not licensed in California. Each family law case is fact specific and will vary based upon your jurisdiction, so you will want to ask an attorney in your jurisdiction for specific advice. 

Claiming children as exemption on your taxes is generally controlled by two different things; (1) your divorce settlement or Order of the Court; and (2) IRS rules and regulations. IRS regulations state that in order to claim someone as an exemption you must have provided more than one-half that person's total support in that tax year. Usually the custodial parent who provides more than one-half of the support for the child, will be allowed to claim the child on their taxes.

 The IRS will allow a non-custodial parent to claim the child as an exemption only if there is a written agreement between the parties or Order of the Court. In addition a non-custodial parent should fill out a form 8332, this must be signed by both parties and should be attached to the non-custodial parents tax return.

Question: 

If I marry a woman with kids from a previous marriage and then we end up getting a divorce, am I required to pay child support for her children?

Answer:

Let me preface my answer by stating that I am not licensed to practice law in the state of Florida, although Cordell & Cordell, P.C. does have attorneys who are licensed in Florida and who would be happy to discuss the specifics of your case with you. 

As a general rule parents of children are the only people who have an obligation to support their children. Generally, step-parents have no legal obligation to support the children of their spouse after a dissolution of marriage. Provided that you did not takes steps to adopt the children through a step-parent adoption, then you would have no legal obligation to support the children after a dissolution.

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.