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Divorce Advice for Men | Fathers' Rights Divorce | Child Custody

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Divorce Attorney Angela FoyQuestion:

My husband is the non-custodial parent of two kids. His ex-wife has custody and he pays her child support. Recently, she has been asking for money for extracurricular activities because she says her gas and electric are being shut off and she needs the extra support.

She signs the kids up for numerous activities, passes to the zoo and the pool, and they just got back from a vacation, but she can't afford to pay her gas and electric bills!

What should we do about this? Would this be grounds for a change in custody? Do we contact DCFS?

Answer:

Regarding your concerns about the environment that the children are in, it may be grounds to modify the custody and placement arrangement, and it may also be grounds to increase the child support that your husband is paying.  Modifying both custody and child support, in most jurisdictions, requires a material change in the circumstances upon which the ordered payments were predicated.  In practice, it is significantly easier to change support than to change custody.  I do not practice in Illinois, so I can only speak in generalities based on my experience. 

You should speak with a domestic litigation attorney in your jurisdiction about the possible actions you should take regarding your concerns about your children.  You have grounds to contact DCFS, but once they are involved, it is sometimes difficult to get them back out of the case. 

When your husband does have time with the children, he should talk with them and see if he can find out more information.  His primary concern should be their well-being, and if they need an alternate place to stay, such as his home, that should be open to them.  Perhaps their mother would be willing to temporarily modify the schedule until she is back on her feet.  If not, a motion likely needs to be filed to protect the children.

In general, the child support money belongs to the parent receiving the support, not the children themselves.  The court could find that the recipient parent was incapable or unwilling to wisely spend the child support.  In my experience, the court intervening in that way is very rare, so the evidence against the recipient parent would need to be significant.

You may have grounds if you can show that the support you are paying is sufficient, yet the children’s basic needs such as electricity and heat in the house are going unmet.  By opening the door to modification, you may be at risk to increasing the support amount.  If the children’s needs are not being met, the court may find that the support amount should be increased.

The likelihood of modifying the order, either for custody or child support, depends on the specific judgment, the facts of your case, and the laws in your jurisdiction.  I do not practice in Illinois, so I cannot inform you as to the state’s specific laws.  I encourage you to speak with a domestic litigation attorney in Illinois.  Cordell & Cordell has attorneys that are licensed and located in Illinois, and they would be happy to discuss your case with you.

 

Angela Foy is an Associate Attorney in the Milwaukee, Wisc., office of Cordell & Cordell where her primary practice is exclusively in the area of domestic relations. Ms. Foy is licensed to practice in the state of Wisconsin, the U.S. District Court, and the Eastern District of Wisconsin. 

 Ms. Foy received her Bachelor’s and Master’s Degrees from the University of Notre Dame. She then continued on to receive her Juris Doctor from Marquette University.


Comments (1)Add Comment
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What can I do if the child support is not being used to provide for the kids?
written by Nikki, July 28, 2012
My husband has two sons, 11 and 13. He always paid his child support on time every time, every month. His ex-wife clearly isn't doing her job to keep a roof over their son's heads and provide them their needs. She has moved at least 5 times in the last 4 years due to evictions. She has a "home based business" that barely pays her bills. The boys have even admitted to us that she doesn't even by the clothes when they need it. We buy their clothes and shoes (which would always end up with her). As it stands now, she is homeless (was living with friends) and the boys are living with us. (How convenient for her that it’s our month to have them for the summer). Although my husband should be paying child support, it’s unfair that he pays it and she doesn't use it the way she's supposed to. He can get in trouble for not paying, but there seems to be no consequence when it's not being used for the well-being of the children. Since we've had the boys, she has not done one thing to provide a roof over their heads. As a matter of fact, when we asked her to help out a little with groceries during the time we have them (because growing boys do eat a lot) she told my husband that she spent the money on lawyers to straighten out her traffic tickets. (She was arrested for warrants, no insurance, expired registration and inspection and she still she's driving her car!) She receives over $900/month in CS. Is that enough to take care of two kids? No. But the rest should be made up from her income (which she barely provides). She once wanted to take him back to court to get more money from him because she said it wasn't enough. Instead of maybe looking for job that pays consistently and probably better than or can supplement her home business income.

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