Ask a Divorce Lawyer topics for Feb. 15: Daycare; Verbal agreements and child support; Hague Convention; equal rights; paying for college; summer visitations
|Monday, 15 February 2010 16:35|
Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:
My ex wife won't tell me where our 2-year-old daughter goes to daycare. Can the court order her to give me this information?
The court can order her to give you the information. Whether or not they will order her to do that is determined by what your custody plan states.
If you have joint physical custody or joint legal custody, it is highly likely the court will order her to give you this information. With joint physical custody, you would need to know where your daughter is located in case of an emergency. Also with joint legal custody, you and your ex should be working together to determine where your daughter goes to daycare, and therefore she should be communicating with you that information.
Further, even if your ex has sole physical and legal custody, many courts will still require the parties to communicate where the child is located in case of emergencies. You should have an attorney look over your parenting plan to determine whether or not your ex is required to share this information with you.
If your ex is required to share this information with you, you should contact an attorney to potentially file a motion for contempt, the court proceeding which will allow you to get this information through a court order. The threat of such a motion is often enough to get a party to share the information.
Keep in mind that I am a Missouri attorney and cannot give you detailed advice about the laws in Georgia. I can only give you general information in this answer. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation. Cordell and Cordell, P.C. has offices in Georgia if you wish to seek additional advice or legal representation.
I pay $1,000 in monthly child support. My income has dropped significantly and my wife and I verbally agreed to a temporary reduction in support, but we didn't file anything with the courts. Now she's changed her mind, and is suing for unpaid child support. I live in another state, so I couldn't make the court appearance and now there's going to be a wage assignment. What can I do? Does the verbal agreement mean nothing?
I must preface my answer by stating that I am not licensed in Louisiana and cannot give you legal advice regarding Louisiana's laws. Unfortunately a verbal agreement to reduce child support, at least in Missouri where I practice, does mean nothing. Individuals cannot unilaterally change a court order.
To modify a child support order, many courts use the substantial and continuing change in circumstances test. The fact that your income has dropped significantly will likely give you a good argument to modify your support order, however you must modify it through the proper channels. I suggest you contact an attorney in you area as soon as possible to begin this process.
You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation.
I have full custody of my two sons. Two years ago, my oldest son went to live with his mom in Indiana (where we used to live). But he has gotten into a lot of trouble there and was recently expelled from school. Can I force him to come back to Colorado and live with me?
Possibly. I do not know all the facts of your case, nor do I practice in Colorado, so I cannot answer your question specifically.
Generally, you may enforce the court order to the letter. This means that if you are granted sole physical custody of your son, you can prevent his mother from keeping him in her custody, other than court ordered visitation periods. Your situation presents an interesting issue, however, in that by allowing your son to live with his mother for two years, you may have consented to a joint custody arrangement.
Keep in mind that I am a Missouri attorney and cannot give you detailed advice about the laws in Colorado. I can only give you general information in this answer. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation. Cordell and Cordell, P.C. has offices in Colorado should you wish to seek additional advice or representation.
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.
My sister-in-law is going through a Hague Convention case in the U.K. We have been told that the U.K. views these cases very narrowly and we might have to bring the kids back to the U.S. We wanted to know what our options if we have to come there? Particulars of the case are that she initially went to get treatment for lupus in the U.K. a year and a half ago and at that time her husband consented.
They had martial problems at that time already. While we were there she kept asking him to come talk about their problems as she had both her kids with her in the U.K. During this time her elder son also started attending school. He did not come to speak to her nor at anytime did he ask for the children to come back to the U.S. He started speaking to the kids less and less and basically broke the marriage down even more. We spoke to a divorce attorney and they said that you could apply for a divorce in the U.K. After he received the application for the divorce, three months later he filed the Hague Convention case but in the interim period never asked for the kids back either. My sister-in-law does not have a green card anymore and still wants a divorce. She is hoping that if this case does come to Michigan she will still get custody and can take them back to the U.K. as they are citizens there. What should we do?
Your sister-in-law should consult with an attorney in Michigan and an attorney in the UK, ideally her Hague Convention attorney, because this area of the law is complex and fact-dependent. I can only give you the following general information:
The Hague Convention on the Civil Aspects of International Child Abduction (“the Hague Convention”) is a treaty between countries that agree to cooperate and abide one set of laws, the Hague Convention, for the return of children removed from their home country for custody disputes. There are over sixty signatory countries. A complete list is available online at the National Center for Missing and Exploited Children’s website, wwww.missingkids.org. The United States became a signatory in 1981 and enacted the International Child Abduction Remedies Act (“ICARA”), 42 USC §§ 11601-11610 (1995), to implement it in the United States.
The Hague Convention seeks to simplify international cases, in which courts in different countries had been issuing conflicting orders, by reducing them to one issue: Where should the case take place? Signatories use the Hague Convention as procedural authority to determine whether children removed from one country should be returned, for the case to take place there, or should remain in their new country. The familiar “best interests of the child” standard has no bearing. The issue is not whether the new country is “best” for the child but whether the child has been removed from his domicile, or home country, in contravention of the Hague Convention.
In most cases, the left-behind parent with custodial rights files an action in the child’s new country for return of the child. (The Hague Convention does govern access cases, in which the parent merely seeks to enforce visitation rights, but those cases are not as publicized and will not be addressed in this article.) In some ways, the case proceeds just like a custody case: the left-behind parent files a petition or complaint; the moving-parent files an answer; the court may issue temporary custody orders; and the parties appear in court to argue their points, sometimes in an evidentiary hearing with witnesses, expert reports and other evidence. In many ways, however, the case is unique: the Hague Convention, in Article 16, specifically bans the court from obtaining jurisdiction to hear the underlying custody dispute; the left-behind parent must file the action within one year of removal (excluding times when the child was away with permission and, in some countries, times when the moving-parent secreted the child); the court cannot return the child if the child is age sixteen or older (even if the case began before age sixteen); and the court may refuse to order the return if the child has become well-settled in the new country, if the child is mature enough to object and does object to return, if the child faces a grave risk of physical or psychological harm if returned, if the left-behind parent acquiesced in the removal, or if the return violates the new country’s fundamental notions of public policy, even if the left-behind parent resides in the child’s home country. These are the moving-parent’s affirmative defenses, and each one the courts narrowly apply to avoid mixing, impermissibly, with the “best interests of the child” standard. Cases analyzing each affirmative defense are available on the NCMEC’s website.
If the left-behind parent proves, by a preponderance of the evidence, that (1) the child had a habitual residence in that parent’s country before removal, (2) the moving-parent breached the parent’s custody rights (which need not be joint physical custody) and (3) the parent was actually exercising the rights at the time of removal, and none of the affirmative defenses apply, the court must order the child returned to the home country. From there, the parents may litigate under the “best interests of the child” standard.
If your sister-in-law’s children resided in Michigan before moving to the UK with her, Michigan is probably their “home state” for Hague purpose – i.e., the location to decide child custody issues. This is true even if her husband consented to them being in the UK for over one year, because the timeline for initiating a Hague case runs from one year after she denies parenting time – his consent essentially extends the time.
It is possible to defeat the Hague case, if the facts are right, based on her children’s mature objection, her children’s age (one is in high school – is that one at least age 16?), and her husband’s failure to exercise his custodial rights at the time he initiated the case. Your sister-in-law and her attorneys should review the facts carefully and consider filing a motion to dismiss for one or more of these reasons.
All is not lost, however, if the case returns to Michigan. Your sister-in-law can probably initiate a divorce here based on her husband’s residency. Michigan courts have jurisdiction (“power”) over a divorce if one of the parties, not both, resides in the State of Michigan for at least 180 days and the county for at least 10 days prior to filing the complaint for divorce. The parties will begin the custody order process soon thereafter, either with a date the Friend of the Court selects for mediation or a date either party selects by requesting a mediation date from the Friend of the Court. (Some counties call these “early intervention” or “conciliation” dates.) The Friend of the Court is the divorce court’s “helper” – an agency-like body that specializes in child custody, child support and spousal support orders and informal dispute resolution for family cases. In Michigan, absent clear and convincing evidence to the contrary, the Friend of the Court recommends and the divorce court awards custody to the parent residing in the “established custodial environment.” This is the environment where the child naturally looks to the custodian for comfort, care, guidance and life’s necessities. From the information you have provided, it sounds like UK with your sister-in-law is the children’s established custodial environment.
Although you are caring relatives, at this time the most you can do is be supportive. As a matter of federal constitutional law, your sister-in-law and her husband’s parental rights are superior to your “rights” to decide where her children reside, to have a say in court, to prevent parenting time or to initiate any other legal action in the divorce process.
Keep in mind that, although I am licensed to practice law in Michigan, I cannot give you or your sister-in-law legal advice without reviewing the case in detail. Do not rely upon this answer as establishing an attorney-client relationship, and contact an attorney immediately for legal advice and representation. Cordell & Cordell, P.C. does have an office in Michigan, and we would be happy to assist. Thank you for submitting your question to Cordell & Cordell, P.C.
My wife and I are going through divorce proceedings. I was told I have equal rights to my daughter and I can have her when I want. But my wife is refusing to let me see her and her parents also won’t let me see my kid when she stays with them when my wife works. Shouldn’t I have equal rights to see my daughter during the divorce process? Can her parents stop me?
You should have equal rights to see your daughter during your divorce, but that does not mean that you do. At the outset, unless your in-laws are also your daughter’s court-appointed guardians or parenting time supervisors, they cannot dictate when you do and do not see your daughter. As a matter of federal constitutional law, they are merely third parties, and your rights as a parent are superior to theirs. Whether your wife can dictate when you see your daughter, however, depends on the following:
If you have a custody order: In Michigan, you have a six month waiting period between the date your divorce commences and the date your court will issue a judgment of divorce. The court may shorten this time or waive it altogether upon a showing of “exceptional circumstances,” e.g., one spouse is headed overseas to war, but you have not indicated any in your question. For most couples, during this period the court issues a temporary custody order. Your court may call this an “interim order” or a “conciliation order” or a “Friend of the Court recommendation and Order” or a “temporary order.” Look for this order in your divorce paperwork, and read it thoroughly. This order will specify when you see your daughter. If your order says you have “liberal” parenting time rights or “to be arranged parenting time rights,” you will need to bring a motion before your court for a more specific schedule because what you have now obviously does not work. Do not rely on the phrase “joint custody” to mean you have equal physical time with your daughter – “joint custody” merely means you have some physical time with your daughter. In most counties, the Friend of the Court, acting under the Friend of the Court Act, issues the first recommended order, to which either party may object. The Friend of the Court will also have the first hearing for your motion.
If you do not or will not have a custody order: Each parent has the constitutional right to the custody, care and rearing of his or her child. That means, you and your spouse each technically have the right to spend time with your daughter. However, it also means that you each have the right to decide who your daughter sees – including, if justified by the circumstances, the other parent.
If you want a custody order: If you do not have a custody order, get one! Until you have an order, you cannot invoke your court’s contempt powers and the Friend of the Court’s makeup parenting time powers. In larger courthouses (Detroit, Grand Rapids, Lansing and surrounding areas), the Friend of the Court will schedule a meeting for you, your spouse and your attorneys to negotiate and (if you cannot agree) recommend the specific order. In smaller courthouses (Corunna, Mecosta, and the UP), you will need to call the Friend of the Court to request this meeting. You may also need to file a motion with the Clerk of the Court to obtain it. You can locate contact information for your Friend of the Court office and sample motion forms online at www.courts.michigan.gov. Be sure your attorney (or you, if you do not have one) emphasizes that, by statute in Michigan, the court must presume that a child is entitled to an equal relationship with both parents and must advise the parents of the options for joint physical custody and joint legal custody.
Keep in mind that, although I am licensed to practice law in Michigan, I cannot give you legal advice without reviewing your case with you. Do not rely upon this answer as establishing an attorney-client relationship, and contact an attorney immediately for legal advice and representation. Cordell & Cordell, P.C. does have an office in Michigan, and we would be happy to assist you. Thank you for submitting your 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.
My support orders from New York say I have to pay until my child is 18. He turns 19 soon and might go to college. Both the mother and I have moved out of New York. Will I be required to pay any of his college expenses if the mother comes after me for money? And how does it work since the order is in New York but neither of us live there now? What law applies?
I am licensed to practice law in Nebraska and can only give you general information. I would suggest you speak with a domestic litigation attorney licensed in your state before taking action.
If your support order doesn’t specify paying for any expenses beyond the age of 18, then you are not required to do so. However, some states have found that parents have a duty to pay for some college expenses, though I believe New York limits that duty until the child turns 21. The mother of your son could certainly attempt to take you to court to ask the court to require you to pay for some college expenses.
If your son lives with his mother, she would need to register the order in the state she lives in now. The Full Faith and Credit for Child Support Orders Act would require her state to use the law of New York when interpreting the order.
I have two kids with my ex, ages 7 and 10 and they live in Pennsylvania. I moved to Florida for work about 6 months ago, and since then I’ve tried to work out a visitation agreement with my ex for summer and holidays. She refuses to agree to anything I propose, and I have texts, e-mails, etc., proving she is being uncooperative. What can I do? And what is a typical arrangement for child custody when the parents live in different states? Is it normal for the children to spend the school year in one place, and live with the other parent during summer?
I am licensed to practice law in Nebraska, as such, I can give you general information. Cordell & Cordell maintains offices in Florida and I would suggest you speak with one of our qualified attorneys before taking action.
It is not unusual for children to spend an extended period of time with the noncustodial parent in the summer time, particularly when the noncustodial parent lives a considerable distance away and travel is not convenient. How much time is ‘normal’ will vary from state to state and depend on the ages of the children. Additionally, visits for fall and/or spring break, and an extended visit over the holidays would be appropriate.
You will need to file a petition to establish custody and visitation, or if an order is in place, a petition to modify. Keep the texts and e-mails for use as evidence later to show you have acted reasonably. Also, keep your correspondence with your ex civil and courteous. Document your efforts to maintain your relationship with your children.
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.