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

• My ex-wife has continued to lie to my daughter causing alienation. Do I have any recourse against my ex-wife?
• My daughter was placed with my deceased ex's mother after a false allegation of sexual abuse. I was found innocent so how can I get full custody of my daughter back?
• My ex was awarded our home two years ago, but now it is scheduled for foreclosure. My name is still on the mortgage. What options do I have?
• Can the judge require that the custodial parent not be allowed to move farther away than they already are?
• Our divorce agreement says we cannot cohabitate while having parenting time with our child and we each have a first right of refusal when one of us cannot honor our parenting time. If these are being violated, how do you enforce and/or modify your custody order?

Question:

My ex wife disclosed to my daughter my adult daughter that I was not her biological father so that my ex's husband could give my daughter away at her wedding and I wouldn't be invited. Prior to this, my daughter had a great relationship. At present, we don't because my ex-wife has continued to lie to my daughter causing alienation. Do I have any recourse against my ex-wife?

Answer:

First, I must preface my answer that I am licensed to practice law in Nebraska and can only give you general information. Cordell & Cordell maintains offices in Georgia. Please consult with one of our local, qualified attorneys before taking action.

Parental alienation can be a factor a judge takes into consideration when determining what a child’s best interests are, when deciding custody issues. Unfortunately, as your daughter is at such an advanced age, a custody battle at this stage would be almost pointless. You can be patient and kind to your daughter, keep the lines of communication open. If she has many years of positive memories to draw upon, hopefully she will come to realize your true role in her up-bringing.

Unfortunately, there are no statutes that specifically prohibits parental alienation. I suppose a creative way to approach it in the courts might be to use the action as a basis for a claim of Intentional Infliction of Emotional Distress. The problem with this claim is that it is generally hard to show that the alleged behavior was actually ‘outrageous’ enough to qualify, and you will have to show that you suffered severe emotional distress – another hard element to prove.

Focus on what you can do to positively influence your daughter, as opposed to how you can make your e-wife pay.

Question:

After my ex passed away, I let her mother have visitation with my daughter. She later reported sexual abuse, my daughter was placed with her after a long drawn out battle, but I was found innocent. How can I get full custody now?

Answer:

First I must preface my answer that I am licensed to practice law in Nebraska, and can only give you general information. Cordell & Cordell maintains offices in Texas and I would suggest you consult with one of our qualified attorneys before taking action.

I assume the family court assumed legal custody of the child and placed the child physically with the mother-in-law after the allegation of abuse. If the family court still has legal custody, you could make a motion for placement change to have your daughter physically returned to you. You could also make a motion to close the case in family court and return legal custody back to you, as the issue that brought you before the family court has been adjudicated.

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.

Question: 

My ex was awarded our home two years ago, but now it is scheduled for a foreclosure trustee sale because she is 6 months behind in payments. My name is still on the mortgage and we're both on the deed. What options do I have?

Answer:

This is the problem when a divorce decree awards a house to one spouse – the mortgage does not, necessarily, follow. Apparently, this is what happened to you. You note that your decree awarded the house to your ex, but you are “still on the mortgage.” That means, if the foreclosure happens, your credit, not your ex’s, will suffer.

Make sure that you received notice of the foreclosure (usually, by mail and by posting it to the door of the house). Make sure your mortgage note allows the foreclosure method the mortgagee choose (so, read all of the fine print!). Assuming notice was proper and foreclosure is possible, then try these options.

Do not ignore this situation. Act immediately. In Tennessee, your home state, you can contact the Tennessee Housing Development Agency (THDA) for free or low cost mortgage foreclosure prevention and mortgage loan modification services. You can also contact the United States Department of Housing and Urban Development’s mortgage foreclosure hotline at 1-888-995-HOPE for services near you.

If you are facing foreclosure. If you cannot repay your mortgage loan, your lender (or, more likely, the lender’s assignee) may begin the foreclosure process pursuant to the terms of your mortgage and federal and state law. If you face a foreclosure, contact your lender and request a meeting immediately. At the meeting, discuss what options you have to delay the foreclosure. These may include forbearance, refinancing, a longer redemption period in the event of foreclosure, a new payment schedule, and a short sale. Be proactive. Do not wait for a foreclosure notice to contact your lender or hope that your divorce will shift the debt to your spouse. Usually, it will not. Explain your legal and financial problems to your lender, and ask for reprieve. Bring financial documents, such as bank account statements and paystubs, to substantiate your financial predicament. The lender may or may not be able to sue you to collect any deficiency between the bid at the foreclosure sale and the outstanding balance on your loan. The terms of the loan will specify whether the loan is a recourse loan, rendering you liable for the deficiency, the notice, if any, required before beginning the foreclosure process, and any other rights you have independent of federal and state law to stop the foreclosure. Request a copy of your entire mortgage and note file. Read it thoroughly and make sure your lender is following every duty to a T (Was notice proper? Do you have an opportunity to cure the default? Is the note a recourse note?) Most lenders are willing to work with you if you are sincere and in good faith negotiate a repayment plan because lenders would rather have an income stream than an empty house. 

If you can negotiate a short sale. In a short sale, the lender agrees to accept less than the borrower’s mortgage indebtedness when the borrower sells the property to a third party in an arm’s-length transaction. Lenders usually agree to short sales to avoid the costs of foreclosure and having a large inventory of empty, unsellable homes. However, short sales come with their own costs. First, as a matter of contract law, a lender may pursue a deficiency if the short sale approval is not conditioned on the lender waiving the deficiency. Therefore, be sure to condition any short sale plan submitted to your lender for approval on the lender waiving any deficiency. Second, the short sale approval process is long and tedious; you and your potential buyer must be willing to wait. Large lenders have short sale packets for use. They include forms for, inter alia, comparative market analyses and brokers’ price opinions, hardship letters, financial disclosures, authorizations to release information, listing agreements, and proposed sale terms. If your lender does not, you will have to obtain these materials. A real estate agent and/or a lawyer experienced in real estate law should be able to assist you. Third, if the lender does approve the short sale and waive any deficiency, the forgiven debt may trigger income tax liability. The lender must send the borrower Form 1099-C, Cancellation of Debt, to indicate the amount of debt forgiven. If the debt was for a principal residence, under the Emergency Economic Stabilization Act of 2008, until 2013 borrowers may exclude the forgiven debt from gross income for federal tax purposes. There is no dollar limit on the exclusion if the principal balance at the time the lender forgave/cancelled the debt was less than $2 million for a couple filing jointly or $1 million for a borrower married but filing separately. Otherwise, the debt may be includable in gross income for tax liability calculations.[1]

Enforce your decree. Read your decree carefully for any language indicating that your ex had so many days to refinance, that she is to “hold you harmless” (i.e., reimburse you for) any costs for the home you pay that the court ordered her to pay. Consider a motion before your divorce judge to hold your ex in contempt for not abiding the decree. Contempt punishment may include attorney fees, costs, reimbursement and jail-time.

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, Tennessee. Do not rely on this answer as establishing an attorney-client relationship. Cordell & Cordell, P.C. does have offices in Tennessee. Thank you for submitting a question to Cordell & Cordell, P.C.

[1] IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS, be advised that any federal tax advice contained in this article was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Always consult a specialist for thorough tax advice.

Question:

My husband allowed his ex wife to move out of state with their daughter, but we have still had consistent visits. We're worried though that she'll move to a state even farther away. Can the judge require that the custodial parent not be allowed to move further away than they already are?

Answer:

When parents share custody of their child, most state courts will restrain the custodial parent from moving the child a certain distance or out of state if doing so changes the child’s domicile without (1) the other parent’s approval and/or (2) the court’s permission. In Michigan, where I practice, parents are not allowed to move the child more than 100 miles from the residence that existed at the time the court issued the custody order without the other parent’s consent and, even if the parent consents, under no circumstances out of Michigan without the court’s approval. See, e.g., MCL 722.31 and related caselaw.

The real question here is, Can the court restrain where the child lives? The court can if the order is in the child’s best interests. If the parent moves without the other’s consent and/or the court’s order, then that can be a basis to modify custody. However, the court must analyze all of the child’s best interests (current and proposed homes, attachment to each parent, school, health, etc., etc.) before issuing such an order. The parent may also be held in contempt and punished with attorney fees, costs and jail-time for disregarding the order.

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:

We have a clause in our decree stating we cannot cohabitate while having parenting time with our child. My ex has a friend that has a live-in boyfriend and she would like our daughter to attend sleepovers at this house which I am 100% opposed.  What can I do? We also have a first right of refusal when one of us cannot honor our parenting time. She will routinely have my daughter spend the night with her parents without giving me my first right of refusal. Can her parents be charged with custodial interference?

Answer:

You have two concerns here that reduce to the same question: How do you enforce and/or modify your custody order?

We can deal with the second concern, custodial interference, quickly. In my experience as a custody litigator, whenever you bring grandma and grandpa into the case you are not going to win unless grandma and grandpa are actively depriving you of your custody rights and/or are not fit to be around your child. Instead, you look like the unreasonable parent in court bent on depriving your child of time with extended relatives – that hurts your case. As you describe it, grandma and grandpa are simply babysitting during your ex’s parenting time.  Your remedy is against your ex, and that is where your first concern comes in.

Your first concern is what your ex does with your child during her parenting time. Your cohabitation clause will not help you. Cohabitation clauses order the parties to refrain from having certain third parties (usually boyfriends and girlfriends) around their child. The clauses do not restrain them from sending their child to a sleepover with a friend whose parent happens to have a live-in boyfriend. A well-drafted clause might do that, but, as you describe it, yours does not. Your remedy is to file a motion to change your order if you believe, and have proof to support your belief, that the sleepovers are not in your daughter’s best interests.

You might try one or more of these options, after thoroughly reviewing your case with an attorney in your state:

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. The judge may also issue sanctions, including payment for attorney fees, and order jail time for contempt.

Custody Modification: In general, the standard to apply for any custody decision is the “best interests of the child” standard. States define this standard differently, but there are certain common 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 the “friendly parent” factor. In general, the parent who follows the court’s orders and is more willing to foster the child’s relationship with the other parent will receive custody. If the parents are equal on all other factors, this may be the dispositive one. This may be the dispositive factor in your case.

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 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.

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. 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.