background and questions...looong-updated

[Specialksw03]

I'm married to my hs sweetheart (about 10 years later lol) and sm to our wonderful little girl.

Background...bm and dh were never married, they split around the time she found out she was pregnant. everyone thought she got knocked up by someone else to try to trap him but when sd was born she was my dh's twin lol now ppl stop him randomly to tell him he couldn't deny her if he tried. anyway sd lived with her mom for about 5-6 weeks after she was born, she wasn't thriving(down 2 lbs from her birth weight)and dh's place wasn't fit for a full time newborn(he had just been taking her for a few hours at atime at that point). hd moved bm and sd in with a close family friend to help show bm how to mother better, well bm didn't like that she was not allowed to come and go as she pleased, um...you need to at least tell some one i'm walking to the store could you watch the baby instead of the homeowner finding the 2 m/o crying on the floor from where she had rolled off the bed. bm left dh's friends house before sd turned 3 mos and left sd there and that's where she stayed until 18 mos. during that time dh would go to the friends house every morn before work and feed/change/bathe sd, stop by on his lunch breaks and spend the evening after work and put her tobed. he would take her and keep her every weekend. at 6 mos dh got at apt across the st from where the baby was staying for bm beacause she was talking about taking the baby back and stayin in a shelter so she could get gov benefit. so he paid for this apt for her for a year(in which she rarely stayed and only visited sd every couple of weeks). sd was 18 mos when the lease was up and he let her know he wouldn't be renewing it, that same day she went to the caregiver's with the police and took sd and with held her for 2 mos until dh got into court. dh won primary custody and then bm cried so the judge actually whited out and switched their names on his report and said she's had her for two months lets see how it goes. she was not awarded cs as dh proved he was providing. we found out 2 months later that she filed through the ag and dh's pay was garnished, he was never served or notified of a court date.

it's been almost a year and half since then and we have had sd about 3 to 3 1/2 weeks out of every month since the order was put in place. bm will call and ask for a few nights here and there. dh lost his job about a year ago and has been staying home with sd because we don't want her in nor can we really afford daycare for him to find a new job. bm withheld sd for about a month around the time we got married which we have been trying file contempt on. long story with a very slow attorney also trying to get primary custody as sd has gotten seriously injured a couple of time while in her care, she doesn't use a carseat and we have her most of the time anyway. we finally got a court date for and she avoided being served so it's being recheduled. here are my questions

Would the juge see giving dh primary residence as status quo given that have her over 75% of the time?

Can it be ordered that bm use a correctly installed carseat, would he be allowed to check? would he have to turn sd over if her mother does not plan to use a carseat?

can the judge order that her mother is no longer able to recieve food stamps or EIC or ther benefits she's using sd for because she does not have the child over 183 overnights a year?

dh stopped paying cs when he lost his job because he had sd most of the time and we could not afford to keep sd well cared for and pay her mother 450 amonth for the 4-6 overnights a month she had her, though we always sent diapers(when she used them), milk, juice, water and snacks for her when bm picks her up? i know it looks bad on dh's part for not keeping up with the cs but it will be almost current when our tax return is garnished. will a judge see dh as horrible for not being current on cs or is it an understandable situation?

thanks

[greenemami]

Well, I'm no expert, but child support is usually separate from custody (at least in my state) so your dh being behind on child support should have no effect on changing custody and shouldn't reaally even be discussed as part of the custody hearing. 

Do you have all of your dh's versus his ex's visitation well-documented?  I would bring in a calendar with all the nights you have her and ex has her marked clearly in different colors for the judge to see.  If you have documentation/proof that you have had her 75% of the time for over ayear, that seems to me like it should be the status quo despite the first court order. Was that order issued as a temporary order or the permanent one?  I believe that temporary orders are (obviously) much easier to change, especially with documentation like that.  Otherwise, I would try to bring proof that your dh is the one doing the day-to-day care, like doctor's appointments, activities, etc. 

Oh, and also go into court with a clear schedule to prove that your dh does not want to cut ex out of his dd's life, but just wants to make it more predictable and keep dd in a stable environment with him, etc.. 

I hope that helps, it's always best to ask an actual lawyer though, lol :)

Good luck!

[csekywithlove]

Originally Posted by Specialksw03 

I'm married to my hs sweetheart (about 10 years later lol) and sm to our wonderful little girl.

Background...bm and dh were never married, they split around the time she found out she was pregnant. everyone thought she got knocked up by someone else to try to trap him but when sd was born she was my dh's twin lol now ppl stop him randomly to tell him he couldn't deny her if he tried. anyway sd lived with her mom for about 5-6 weeks after she was born, she wasn't thriving(down 2 lbs from her birth weight)and dh's place wasn't fit for a full time newborn(he had just been taking her for a few hours at atime at that point). hd moved bm and sd in with a close family friend to help show bm how to mother better, well bm didn't like that she was not allowed to come and go as she pleased, um...you need to at least tell some one i'm walking to the store could you watch the baby instead of the homeowner finding the 2 m/o crying on the floor from where she had rolled off the bed. bm left dh's friends house before sd turned 3 mos and left sd there and that's where she stayed until 18 mos. during that time dh would go to the friends house every morn before work and feed/change/bathe sd, stop by on his lunch breaks and spend the evening after work and put her tobed. he would take her and keep her every weekend. at 6 mos dh got at apt across the st from where the baby was staying for bm beacause she was talking about taking the baby back and stayin in a shelter so she could get gov benefit. so he paid for this apt for her for a year(in which she rarely stayed and only visited sd every couple of weeks). sd was 18 mos when the lease was up and he let her know he wouldn't be renewing it, that same day she went to the caregiver's with the police and took sd and with held her for 2 mos until dh got into court. dh won primary custody and then bm cried so the judge actually whited out and switched their names on his report and said she's had her for two months lets see how it goes. she was not awarded cs as dh proved he was providing. we found out 2 months later that she filed through the ag and dh's pay was garnished, he was never served or notified of a court date.

it's been almost a year and half since then and we have had sd about 3 to 3 1/2 weeks out of every month since the order was put in place. bm will call and ask for a few nights here and there. dh lost his job about a year ago and has been staying home with sd because we don't want her in nor can we really afford daycare for him to find a new job. bm withheld sd for about a month around the time we got married which we have been trying file contempt on. long story with a very slow attorney also trying to get primary custody as sd has gotten seriously injured a couple of time while in her care, she doesn't use a carseat and we have her most of the time anyway. we finally got a court date for and she avoided being served so it's being recheduled. here are my questions

Would the juge see giving dh primary residence as status quo given that have her over 75% of the time?

Can it be ordered that bm use a correctly installed carseat, would he be allowed to check? would he have to turn sd over if her mother does not plan to use a carseat?

can the judge order that her mother is no longer able to recieve food stamps or EIC or ther benefits she's using sd for because she does not have the child over 183 overnights a year?

dh stopped paying cs when he lost his job because he had sd most of the time and we could not afford to keep sd well cared for and pay her mother 450 amonth for the 4-6 overnights a month she had her, though we always sent diapers(when she used them), milk, juice, water and snacks for her when bm picks her up? i know it looks bad on dh's part for not keeping up with the cs but it will be almost current when our tax return is garnished. will a judge see dh as horrible for not being current on cs or is it an understandable situation?

thanks

After what you have posted about BM, I am wondering how the local social services have not already been involved. 

Here is what I know from our situation. My DH and BMwere never married, had DSS and lived together until he was 8 m/o. DH has never been absent from DSSlife. The mother was continually absent, hasn't had a job in two years, no car, no nothing other than an apartment and a church to pay her bills. DH was awarded residential custody and she is supposed to pay him the state minimum in cs. She doesn't and next month she will prolly be sent to jail for 90 days.  She hasn't seen him since last October. But when she did see him, she didn't have the car seat installed properly. DH told her that DSS would not get into the car until I was allowed to check it. She started trying to throw a fit and he said, " What judge will throw me in jail for making sure my son is safe?" And she backed down.

I do know that if your DH has residential custody BM cannot get ANY state or government assistance because she would not have her more than half the time. I think you husband would need to get caught up on cs before going to court, but I understand that life can be hard. I don't know what a judge would say. 

I do know that when my DH went for custody the BM did not have anything done that she was required and had over a half year to get done, still no job, transportation, etc. The judge looked at her like she was .... well horrible. Gave residential custody to my DH, she tried to protest in the courtroom and her lawyer told her to be quiet at the same time the judge said, "I can hold you in contempt for not doing your part, you know that Ms. ______, and you are on thin ice already."

Also make sure you and DH show up to every single court date. Don't just think that the lawyer can take care of it. Make your intentions, support and love for your SD clear by being present.

And if you DH is out of work all that he should have to do is go to the cs office and have the cs lowered since he is without a job. And I know for a fact that the court cannot MAKE him get a job. Because if that was the case, my DSS BM would already have one.

I hope that was somewhat helpful... 

[Specialksw03]

Thanks ladies, this has calmed me a bit. While I know dh is the better parent, the courts around here are very biased towards mothers. We actually do have a color coded calander (and about 20 pages of documentation) and some months there are no stickers in her mom's color. The original orders were temporary, we hired an attorney so we could go back and appeal but he said the courts would mail a notice for a permanant hearing. That never happend, from what the attorney found out, our case was dismissed because she filed through the attorney gen and they had jurisdicton over the case. We were then told to we had to wait a year before the case could be taken back to court. It's been a year and half and he has a court date next month.

He didn't try to get his cs modified because when he called just to change his address and request his member ID the three ppl that he spoke to were extremely rude to him about being behind. He stated off almost 2000 behind because he didn't know about it. She gave the wrong address wich is why he was trying to change it lol. He's under the mindset that in the ag's eyes all dad's are deadbeats that justwant to get out of paying. So he said sh can have our tax return, which will fully pay it off, at least for now anyway. I'm fine with that beacause as long as she knows she has money comming she stays away. We want sd to know and have a good relationship with her mother but right now the few days she spends with her throw her off for about a week. She'll come back angry, disrespectful, rude her sleep schedule is crazy and she won't drink water. I think they need some therapy together to help their relationship but her mom says it out of the question.

CPS has been called 4 times and they closed every single one. Said recurrent boils in the diaper area were a difference in parenting styles WTH??? With the more serious injury, they came and inspected our home when she was with her mom, then sd was with us for a week and her mom wanted her back(because cps was comming to visit). We don't have the report but when dh called the case worker she said the injury(a burn from a iron) was acceptable, well it was a week and half old. Dh asked if she spoke with sd, the lady told him she was asleep (um...what if she were unconcious) and that her mother said everyone just over reacts and the caseworker told him to stop crying wolf (he didn't call, 3 different ppl did) and to pay his cs (he started off behind and the only had to pay 50 a month toward the back cs. We still havn't gontten the records we requested.

Sorry about the rambling lol. Anyway it's nice to see that from your posts the judicial system can work 

[VocalMinority]

Originally Posted by greenemami 

Well, I'm no expert, but child support is usually separate from custody (at least in my state) so your dh being behind on child support should have no effect on changing custody and shouldn't reaally even be discussed as part of the custody hearing. 

Not to be argumentative, just informative...Here, you are not even allowed to petition for a change of custody unless you're current in your child support.  Yes, the two are separate in the sense that the CP may not withhold time with the child because the NCP is behind.  But being behind is considered a failure to take care of your parental responsibilities as NCP, so you're not allowed to ask to become CP if you can't get that together.  I guess it's also meant to keep people from asking for custody to get out of CS obligations.

The good news is the court does not seem to hold it against you, if you've been in arrears in the past, as long as you clear it up.

(As a complete aside:  In all fairness, the CP shouldn't be allowed to ask for increased CS if she is refusing court-ordered parenting time or otherwise blocking the NCP's legal contact and involvement with the child!  I mean, allowing contact with the NCP is one of the CP's parental responsibilities, right?)

The point is, research the laws where you live!

[csekywithlove]

Originally Posted by Jeannine 

The point is, research the laws where you live!

That right there is the best advice. It's exactly what I've had to do. 
 

[Specialksw03]

a little update:

court was at the beginning of June, bm requested a court appointed attorney which she recieved and mediation was set for the beginning of July. during mediation, dh was told that you basically have to take what she says, dust off the lies and a bit of truth will shine through. her lawyer told her to not agree to a lot of stuff she had already agreed to by email. the only thing that came of mediation was that bm was held in contempt for several things and a social study was ordered. to our knowledge she still hasn't paid her part. she was told by her attorney that her best chance at keeping primary would be to go strictly by the order and allow no extra time with dh, which lasted almost a month. sd has had 2 overnights with bm in the last month.

cs court was in mid august, she was under the assumption that she might have to pay dh for each month he had sd more than 50% so needless to say she was afraid. the ag's office proposed, with her permission, that all arrears would be erased. then together (dh, bm and ag) came up with an amount for dh to pay until the next court date. it was based off of the actual amount bm thought she incur caring for sd the 8-11 overnights allowed by the standard visitation schedule with her being ncp. it is basically equal to 10% of net min wage, which is rather generous considering the time she actually takes sd.

she doesn't want to go back to court so she has agreed to work amicably to come up with a new parenting plan. she is willing to give dh everything he wants, time, education and such but she wants to retain residential status (stated for benefits) and child support rights. dh proposed the custody option where neither parent is allowed to choose the child's primary residence, there is an agreed upon geographical restriction and the legal custody is still allowed to be split, which i think is normally for true 50/50 custody, and she's thinking about it.

so here are some more questions:

is it even possible to have residential status but have the child so little time?

would a judge continue to require to dh to pay cs for so little time?

what are the pros and cons of not having a primary residence?

thanks so much

Edited by Specialksw03 - 10/30/11 at 9:39pm

[Super~Single~Mama]

Originally Posted by Specialksw03 

so here are some more questions:

is it even possible to have residential status but have the child so little time?

would a judge continue to require to dh to pay cs for so little time?

what are the pros and cons of not having a primary residence?

thanks so much

If she really only has the child 8-10 nights per month, but is claiming that the child is her dependent in order to get higher food stamps/medicaid/cash assistance (I only read your last post, I don't know the back story - sorry if I'm totally off), and the state finds out that she does not actually have primary physical custody of the child, she could be in BIG trouble for fraud.  The state will go after the benefits she received based on her fraudulent misrepresentation.

A judge, with the knowledge that your sd lives you primarily, would not force your dh to pay child support, unless his ex needed the support in order to afford visitation (which is awarded rarely, but is in circumstances that require it).

[aricha]

Originally Posted by Super~Single~Mama 

A judge, with the knowledge that your sd lives you primarily, would not force your dh to pay child support, unless his ex needed the support in order to afford visitation (which is awarded rarely, but is in circumstances that require it).

CS depends on how it is calculated in your state. Even if CS is calculated based on both income and parenting time, if the parent with more parenting time earns significantly more than the parent with less parenting time, the parent with less parenting time could receive child support. There is at least one person here who had their step-child living with them full-time and paid CS to the non-custodial mother.

The labels of physical vs legal custody are also determined differently in different states. Some places must have one parent specified as "primary physical custody" some allow "joint physical custody" even when it is not an even 50/50 split. We have significantly less parenting time than my step-daughter's mom (my husband has 1/3 vs. her mom's 2/3) and we live far apart, but it is labeled as "joint physical custody" in the court paperwork, and neither parent is identified "custodial" or "non-custodial." But some states would automatically label our situation as "primary custody" and "non-custodial" because of the difference in physical parenting time.

In your case, you are just trying to go into court and have the status quo legally recognized and documented. Your husband isn't asking for more time with his daughter or to reduce her mom's access to her. He just wants the court documents to reflect what is actually occurring in order to protect his daughter from further instability.   

[Specialksw03]

Originally Posted by Super~Single~Mama 

If she really only has the child 8-10 nights per month, but is claiming that the child is her dependent in order to get higher food stamps/medicaid/cash assistance (I only read your last post, I don't know the back story - sorry if I'm totally off), and the state finds out that she does not actually have primary physical custody of the child, she could be in BIG trouble for fraud.  The state will go after the benefits she received based on her fraudulent misrepresentation.

A judge, with the knowledge that your sd lives you primarily, would not force your dh to pay child support, unless his ex needed the support in order to afford visitation (which is awarded rarely, but is in circumstances that require it).

as of now she is still the CP on paper, we're in the modification process right now. she does receive food stamps and medicaid, i assume she's allowed to because she is the CP even if she doesn't exercise her time. In actuality she only comes to get sd about 3 nights a month. the ag's office set dh's cs that he has to pay her with the assumption that the roles are switching. she wouldn't agree to drop the case and they told her they wouldn't give her the full amount because dh was able to prove he cares for sd. the 8-11 nights is what bm would be allowed per the standard orders if she were the NCP. Dh says that he thinks all he has to do is submit the new parenting plan to the ag after the mod is complete and they will drop his cs, I'm just concerned it will be more complicated than that and we'll be paying her to be the NCP. Cs here is calculated using the ncp's income only

[Specialksw03]

Originally Posted by aricha 

In your case, you are just trying to go into court and have the status quo legally recognized and documented. Your husband isn't asking for more time with his daughter or to reduce her mom's access to her. He just wants the court documents to reflect what is actually occurring in order to protect his daughter from further instability.   

Exactly what he is doing!
 

[Super~Single~Mama]

Originally Posted by Specialksw03 

as of now she is still the CP on paper, we're in the modification process right now. she does receive food stamps and medicaid, i assume she's allowed to because she is the CP even if she doesn't exercise her time. In actuality she only comes to get sd about 3 nights a month. the ag's office set dh's cs that he has to pay her with the assumption that the roles are switching. she wouldn't agree to drop the case and they told her they wouldn't give her the full amount because dh was able to prove he cares for sd. the 8-11 nights is what bm would be allowed per the standard orders if she were the NCP. Dh says that he thinks all he has to do is submit the new parenting plan to the ag after the mod is complete and they will drop his cs, I'm just concerned it will be more complicated than that and we'll be paying her to be the NCP. Cs here is calculated using the ncp's income only

I think he's right - at least he should be.  Just make sure to keep any and all official court orders kept in a VERY safe place (I'm thinking of getting a safe or something to keep mine in soon).  And yes, in most places it is only the ncp's income that is used - a custodial parent being ordered to pay support to the ncp is VERY rare, and is only done when the ncp has a HUGE need, and would otherwise not be able to afford to have visitation, but is an otherwise good parent.

Also, I understand that she is the CP on paper right now, and not using her time.  But once the actual court order says that your sd spends the majority of her time with your DH - it won't matter who the court order "calls" the CP.  So, once the parenting plan says that sd spends 8-10 nights/month with her mom, and the other 20nights with her dad, the mother will not be able to receive food stamps or medicaid on behalf of sd.  She may still qualify for herself, but it will be a lower amount of food stamps, and medicaid for just her.  A judge isn't going to allow anyone to enter an order that gives your dh the majority of time, and yet call her the CP.  Make sense?

[Specialksw03]

thanks!

[csekywithlove]

My DSS's BM was the same way with wanting DSS as a means to get assistance from the state (medical and food stamps). Has she stated to the judge or anyone bound by the court that this is why she wants DSD for support? And if she has said this to your DH, has he written it down? You might want to bring that up in court if you can or at least to your lawyer. When my DH was awarded residential custody of DSS, some interesting things took place. BM had applied for multiple other benefits from the state including a transition program that can rack up thousands of dollars on the nonresidential parent. The day that we brought the custody decree to the food stamp office ( DH refused to allow her to claim DSS ever again), there was a note on the file and put into the computer that read, "MOTHER IS NOT CUSTODIAN OF THE CHILD, END ALL PROGRAM APPLICATIONS THAT INCLUDE THE CHILD FOR BENEFITS." DH was very happy after that.... she was not. Once he has that paper, all the benefits will stop. The state will not want to send her anymore money than it absolutely has to. Hope all is well!