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

Providing men with essential divorce advice, fathers' rights divorce information and child custody articles. Dads Divorce is a community for men facing divorce or fathers' rights issues and run by Cordell and Cordell. Cordell & Cordell is a family law firm with a focus on men's divorce, child custody and fathers' rights divorce.
Feb 07, 2007

Question:

I live in Florida and my wife and children live in Illinois, and we are talking about getting a divorce. I moved here to get a good job and move my family down here to live here with me. Shortly after I moved here I found out that she was with another man and that she had become a stripper again and that she was doing drugs. My question is if she leaves the state of Illinois with one of our children without my permission or without telling me, is that legal?? Or is that considered parental kidnapping??

Answer:

Allow me to preface this answer with the comment that I am not licensed to practice in Florida. Right now each of you have unlimited rights with respect to the kids. If you are concerned with what she will do, once you file for divorce, then she can not permanently leave the state with the child. However, normally the court will not require her to stay in Illinois long term if you remain out of state.

Feb 07, 2007

Question:

My ex-wife called wanting me to come and get my 13 year old son. She stated she couldn't control him. I went and got him and he wants to live with me. She had initially agreed to this until I told her I would no longer pay child support. I also have a 16 year old daughter with her. My ex now says she will not give me custody of my son. Should I petition the court for modification, or would I be wasting my time? Also, if I get custody of him, should I still pay support for my daughter since I would not require my ex to pay me support for my son?

Answer:

Allow me to preface this answer with the comment that I am not licensed to practice in Alabama. You should Petition for it. Based on his age, the court may be inclined to consider his wishes, plus the fact that she relinquished custody to you. As far as child support, there is normally an offset. What you should pay her - what she should pay you = the difference (child support). I do not know how Alabama applies the same principle, but generally child support will not be eliminated just because there is split custody.

Feb 05, 2007

Question:

I was wondering if someone is saying things that are untrue about me. Things like I'm hitting the child and that I'm trying to force the child to call me mom. Is there anything that can be done? Do I have any legal rights to make them stop? I'm thinking about going to school to get a teaching degree an I really think what they are doing is wrong. I have never hit nor do I intend to do so. I also have never ask either of my step kids to call me mom. I have a son who is a step son to my current husband and I wouldn't want him to call anyone but his father dad. So again I ask is there anything I can do to stop them?

Answer:

I really do not see a specific suit in family court (this forum deals with family law issues only). You could seek advise from a local attorney on a slander claim, but I believe that would be difficult to prove. If your spouse has other grounds to modify custody you could use the lies and involving the children in adult issues as a part of the modification suit. In and of itself I do not believe most courts would modify custody based upon what you have stated.

Feb 05, 2007

Question:

How is child support affected if one parent gets remarried, and joint custody was granted. Does the new spouses income, or the change in the remarried parent's expenses, affect the amount of child support paid?

Answer:

Every state calculates child support differently and I am not licensed in the State of Connecticut. In the jurisdictions that I am familiar with the new spouses income does not affect the child support numbers.

Jan 28, 2007
The oft-used term “dead beat dad” conjures up an image of a father who neglects to support his offspring emotionally or financially. Not every dad who does not fulfill his child support obligation can be accurately construed as a “dead beat.” The law recognizes this distinction.

In Georgia, a petitioner must show two elements to the court to sufficiently set forth a contempt cause of action. First, the petitioner must show that the respondent has been ordered to pay child support by the court and that he has failed to pay the said amount. Second, the court must decide whether respondent’s failure to comply was willful or without justification. Thus, absent a showing of fault, a petitioner’s contempt claim will fail. Although the petitioner has the burden to prove noncompliance, the respondent bears the burden of showing that his failure to pay was not willful, that he has exhausted all resources at his disposal, and that he remains unable to honor the court’s order. This article sets forth the most commonly raised defenses to a contempt action for non-payment of child support. These reasons include: “(1) respondent spouse’s inability to pay, (2) void judgment and decree, (3) change of custody, (4) supplemental payments, (5) reliance upon agreement, and (6) vagueness” among others. (See Georgia Divorce, Alimony, and Child Custody by Dan E. McConaughey). Inability to pay is a valid defense to a contempt action, however such a showing is more difficult than one might imagine. Simply showing that you are unemployed is not sufficient to establish an inability to pay. Courts are less than sympathetic to an individual who has other means of making payments. Thus, a Respondent who sets forth this defense must be prepared to prove that he is not only unemployed but also that he is incapable of finding productive employment despite appropriate efforts. Further, if a party is able to borrow funds from another individual to satisfy his obligation, this should be done rather than coming to court citing an inability to pay. Lastly, courts have held that a party who has any assets (including veteran’s disability, real property, etc.) must exhaust such funds before articulating an inability to pay. Another defense to a contempt action is when the respondent has obtained legal custody of the child(ren) for which he is ordered to pay support. A court order transferring custody is sufficient proof of a custodial change, but a private agreement by the complaining party transferring custody in lieu of an order may also warrant a decision to stop making child support payments. Moreover, a party may unilaterally reduce his support payments to offset the required payments by an amount equal to the social security benefits received by a custodial parent. Reliance on a previous court order or out-of-court agreement between the parties may justify non-payment. Court orders do not always clearly delineate critical elements of a child support order including when payments are to be made and in when such payments shall cease. Ambiguity in language occurs frequently where a judge simply incorporates parties’ settlement agreement into a final judgment and decree. An example of such imprecise language may involve insufficiently specifying if the payments stop after the child reaches 18 years old or continue through college. If the respondent is acting in good faith in reliance on a court order and stops making payments after the child reaches 18, he will have a valid defense to the contempt action so long as his understanding was reasonable. Although reliance on a private agreement is typically not permissible, it may protect a respondent from having to make back payments so long as the respondent relied upon the out-of-court agreement reasonably and in good faith. Another defense which is useful in any contempt action is premised on the “void for vagueness” doctrine. In order to hold an individual liable or guilty in civil or criminal contempt respectively, and to likewise subsequently levy sanctions against that individual, the rider must clearly articulate what was required. Surprisingly, however, courts have not gone so far as to require a specified amount of child support in a decree to warrant contempt. A decree of divorce requiring the Respondent to pay “reasonable child support…in accord with his financial status” has been held sufficiently clear. Nolan v. Moore, 241 Ga. 156, 244 S.E.2d 587 (1967). Courts have implied reasonableness standards when time lines for payments have not been included in a decree. For example, if a decree requires payment to be made on the first of each month or on another date agreeable to the parties, courts would not likely allow a litigant to plead that he thought he could make payments on different dates each month. A number of other defenses have been set forth countless times without success. Perhaps the most common situation is where a litigant has refused to pay child support because the party bringing the contempt action has withheld visitation. Although courts have supported the legal principle which requires a litigant to come to court with “clean hands” a party’s failure to provide visitation does not erase the liability of the individual who has neglected to pay support. Put simply, two wrongs don’t make a right. Moreover, it is not a valid defense for a respondent to assert that the complaining spouse has earnings sufficient to care for the minor children without the respondent’s payments. Although the custodial parent’s income may be a factor under Georgia’s new child support guidelines which become effective January 1, 2007, such a showing should be set forth in a modification suit requesting a reduction rather than unilaterally without a hearing in violation of a previous court order. Courts have become less forgiving of non-payment of child support. Since the sanctions for non-payment of child support may include fines or even jail time, the aforementioned defenses should be considered in formulating a response to a contempt action.
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