Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:
- How to handle international custody battles
- What forms do I need to complete a change in child support based on mutual agreement between parents?
- Do I have to file for divorce in order to get the absent parent to provide health insurance?
- Is it possible to have a stepparent adoption reversed?
- My ex and I both agree to me moving out of state with our son, but he won't put it in writing. Am I allowed to move out of state without something in writing?
Question:
My husband had court-ordered visitation with his now 17-year-old son. The mother abruptly moved to South Korea and now my husband has not seen his son in almost three years. We've also seen pictures of him on social networks using what appears to be marijuana. How can my husband get custody of him?
Answer:
Your husband should not wait any longer if he wants to enforce his rights. The closer his son is to the age of majority (usually age 18 for custody orders), the less likely a judge is to force him to visit. And the longer he waits to enforce his rights, the less likely a judge is to believe his motives are good. Right or wrong, most judges will ask “Why three years?” and assume he is up to no good. He might try one or more of these options:
Show Cause/Contempt Motion: If the ex simply refuses to follow the court’s order, consider filing a motion to have the judge hold her in contempt for disobedience. The judge will order her to comply, perhaps with make up parenting time, and he will create a record of his denied time in the event he need to modify the order later. The judge may also issue sanctions, including payment for attorney fees, and order jail time for conptempt. The procedures for these motions vary by jurisdiction, so be sure to contact a lawyer for assistance.
Custody Modification: In general, the standard to apply for any custody decision is the “best interests of the child” standard. Countries define this standard differently, but there are certain factors and themes. For example, in Michigan, where I practice, family courts must consider the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence . . . of the existing or proposed home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant
One common factor is “health” or “fitness.” This is an amorphous factor that only impacts the decision if it affects the child. For example, a moody mother who is an excellent mother nonetheless will still receive custodial time, whereas a moody mother who lies to the court to alienate her children from their father, who hits her children, etc., will probably receive less. If the parents are equal on all other factors, this may be the dispositive one.
Another common factor is the “home” factor. To make the divorce process easier for children, who characteristically cannot cope as easily as adults, courts favor the parent in the established custodial environment for physical custody. An established custodial environment is a physical and a psychological place where the child naturally look for comfort, guidance and life’s necessities. From the information you have provided, South Koreas may be your husband’s child’s established custodial environment. Therefore, to properly present the case, be sure to have concrete examples, with witnesses and documents if available, to show why he should have custody.
Research your resources. Research the resources in your area for parenting time and custody enforcement. Parents are often surprised to learn that many states do not require a court motion before a judge to enforce court orders. Other resources, such as parenting time monitors, counselors, and custody mediators exist. These resources are often less costly and more efficient. In Michigan, for example, parents who have missed visitation with their children may file a written complaint with the friend of the court, an agency-like body under the family court’s direction, to request make up time within 56 days of the missed visit. These resources are less intimidating and usually do not strain the parent-child-other parent relationship as much as a full-blown custody battle before a judge does. You should consult with a lawyer in your state to learn about the resources available to you.
This is only general information. Please discuss your case with an attorney in your area immediately for legal advice. I am a Michigan attorney and cannot give you advice for your case or the laws in your home state, California. Do not rely on this answer as establishing an attorney-client relationship. Thank you for submitting a question to Cordell & Cordell, P.C.
Question:
My wife and I are going through a divorce, and she is currently living with my daughter in Italy. I'm also worried that she is going to come here and disturb my peace. What should I do to protect myself from any possible problems she might cause, and how can I get custody of my daughter who is now living overseas?
Answer:
You do have options.
The action you take, if any, however, depends on (1) the immediacy of your wife’s conduct and (2) whether you properly filed and served your case in the California courts. It is unclear to me whether wife’s conduct is immediate – you fear “possible” problems and that she will “disturb the peace,” but has she actually threatened to cause problems or disturb you (e.g., by arriving at your home unannounced to remove your belongings). It is also unclear to me that you properly filed and served your case. Your wife resides in Italy. Have you given her a copy of your divorce filing? Has she responded in court? If not, you may have another problem – lack of jurisdiction (“power”) over your case.
Judges are not magicians. Nor do they have crystal balls. They cannot predict what could happen if your wife returns to California. They will only protect against what is “reasonably certain” to occur based on fact, more than your fears or worries, such as actual threats from your wife reduced to writing.
If your wife’s conduct is immediate and the California courts have power over your case, you might try one or more of the following:
Personal Protection Order/Order of Protection: The specific language for the standards to issue protective orders vary by state, but, in general, a court cannot issue one unless the petitioning party presents sufficient evidence (usually a preponderance of evidence) that abuse or the threat of abuse is present and, moreover, that the order is necessary. The party must be very specific about any abusive or threatening behavior, and there must be reason to believe the behavior will continue in the future. For example, a request for parenting time, absent more, is not enough to issue an order. A request for parenting time accompanied by threats to “take you down if you don’t give me my kid,” a history of domestic violence, a physical assault, or some other abusive or threatening behavior, may be. Note, abuse need not be physical abuse. In most states, verbal threats are insufficient unless accompanied by an imminent risk of physical harm.
Hague Convention Registration/Rights Enforcement: Italy and the United States are parties to the Hague Convention on the Civil Aspects of Child Abduction. This is an international agreement between signatory countries to (1) order children wrongfully withheld from their home country, absent affirmative defenses, returned to their home country for their parents to litigate custody there and (2) accommodate international visitation when the parents live in different countries. For the return cases, the principle is, the country where the children established a home (a domicile) should decide the children’s custody, not the country to which one parent wrongfully moved them. You can enforce your ordered rights internationally with the Convention by contacting the National Center for Missing and Exploited Children, via your local police department to make an abduction report or by locating the NCMEC online.
Custody Modification: In general, the standard to apply for any custody decision is the “best interests of the child” standard. Countries define this standard differently, but there are certain factors and themes. For example, in Michigan, where I practice, family courts must consider the following factors:
(a) The love, affection, and other emotional ties existing between the parties involved and the child.
(b) The capacity and disposition of the parties involved to give the child love, affection and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
(c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care. . . .
(d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
(e) The permanence . . . of the existing or proposed home or homes.
(f) The moral fitness of the parties involved.
(g) The mental and physical health of the parties involved.
(h) The home, school, and community record of the child.
(i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
(j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent of the child and parents.
(k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
(l) Any other factor considered by the court to be relevant
One common factor is “health” or “fitness.” This is an amorphous factor that only impacts the decision if it affects the children. For example, a moody mother who is an excellent mother nonetheless will still receive custodial time, whereas a moody mother who lies to the court to alienate her children from their father, who hits her children, etc., will probably receive less. If the parents are equal on all other factors, this may be the dispositive one. Your wife’s behaviors may be dispositive here if you are equal in all other factors.
Another common factor is the “home” factor. To make the divorce process easier for children, who characteristically cannot cope as easily as adults, courts favor the parent in the established custodial environment for physical custody. An established custodial environment is a physical and a psychological place where the child naturally look for comfort, guidance and life’s necessities. From the information you have provided, Italy may be your child’s established custodial environment. Therefore, to properly present your case, you should have concrete examples, with witnesses and documents if available, for each allegation you present to show why you should have custody.
This is only general information. Please discuss your case with an attorney in your area immediately for legal advice. I am a Michigan attorney and cannot give you advice for your case or the laws in your home state, California. Do not rely on this answer as establishing an attorney-client relationship. Thank you for submitting a 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.
Question:
What forms do I need to complete a change in child support based on mutual agreement between parents?
Answer:
Forms to change child support are State and often County specific. Because I do not practice in California, I cannot give you a specific answer to your question.
In Missouri, where I practice, some of the courts will allow a modification by consent agreement. This does require filing a motion to modify. There may be forms which you can fill out in your state which allow modification without filing a motion to modify. You can try the clerk’s office in your county, although they cannot give you legal advice.
This answer should not be construed as creating an attorney-client relationship. If you need additional legal advice or representation you should contact an attorney in your area immediately.
Question:
Do I have to file for divorce in order to get the absent parent to provide health insurance for our minor children since he was the one who canceled it when he left?
Answer:
Child support laws are state specific, and since I am not licensed in the state of Colorado, I cannot answer your question specifically. I can only give you general knowledge.
In many states it is not necessary for a party to file divorce to receive child or spousal support. You may be able to file for temporary child support and spousal support through the courts. You may wish to ask your local court clerk if they have forms for temporary child support and/or temporary spousal support. You also may want to speak with an attorney, as most individuals in support battles require legal advice.
This answer should not be construed as creating an attorney-client relationship. If you need additional legal advice or representation you should contact an attorney in your area immediately. Cordell & Cordell, P.C. has offices in Colorado with attorneys who would be glad to review your case if you so choose.
Question:
Is it possible to have a stepparent adoption reversed?
Answer:
I must preface my answer by stating I am not licensed in Kansas and therefore cannot answer your question specifically, rather only answer generally.
When an individual adopts a child, they gain all the rights and privileges and responsibilities of a biological parent. As the saying goes, you divorce spouses, not children. However, depending on what the parenting plan and court order state with regards to custody, many of those rights, privileges and responsibilities may have changed with the divorce.
Because I do not know the specifics of your husband’s case, I cannot give him specific advice. If he needs additional legal advice or representation, he should contact an attorney in your area immediately to review his case. Cordell & Cordell, P.C. has many attorneys in Kansas who would be glad to review his case further. Thank you for submitting your question to DadsDivorce.com.
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:
I am remarrying and we are going to move states. I have custody of my son from a previous relationship. My ex and I both agree to the move and I have even agreed to lower his child support. But my ex has not shown interest in signing papers putting our agreement on paper and filing it with the court. My main concern is: Am I allowed to move out of state without something in writing?
Answer:
First let me preface my answer by stating that I cannot give you any specific legal advice because I do not have all the facts and the relevant Court Orders to for an accurate opinion, even though I am licensed to practice law in the State of Kentucky with Cordell & Cordell, P.C.
Generally speaking however, if a parent has sole custody of the child and there is no order from the Court preventing the move then a parent should be able to freely move with their child. It would be up to the other parent to file a motion with the Court to prevent the move and to show good reason why the Court should not allow the parent to move out of state with the child.
Generally, it is easier when the parents can agree on the move, but you should get that agreement in writing, in case this issue will be brought before the Court. Your ex should keep in mind that unless the Court modifies its order or he has a signed agreement stating otherwise, then he will be required to continue to pay the full amount of support as ordered by the Court.
Question:
My daughter lives with her mother and ever since I got remarried last year, my daughter refuses to come over. I am now ready to move to out of state. What needs to be done?
Answer:
First let me preface my answer by stating that I am not licensed in Ohio and cannot provide you specific advice to your question. You should seek the advice of an attorney who is licensed in your jurisdiction to get a specific answer to your question.
Your question is a little vague, so I am unsure what you are specifically asking about. If you are asking what needs to be done so that your daughter exercises visitation or you need to modify visitation, then you will need to move the Court to modify the visitation schedule to a schedule that is more conducive to your new location. Regardless of your daughters age, she is still a minor child and if the Court Orders that she is to have visitation with you, then that needs to be followed.
If you are asking what needs to be done in order for you to move, then as long as there is no order from the Court that restricts you from moving, then there shouldn't be anything that you need to do. However, if the Court has restricted your movement, you will need to ask the Court to modify that Order to allow you to move. You should seek the advice of an attorney in your jurisdiction for specific advice as to what you need to file with the Court and when you need to file it.
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.
