LoneStar,<P>As you know I am new here, but I saw a post from another person in which you answered a legal question. I have a doozie for you, if you wouldn't mind answering it.<P>(This is a very long story, but I will try to give you just the details you will need to answer the question) Earlier this year, my husband gained temporary custody of his 14 year old daughter (there was some issue of alcohol and drug abuse with her mother). When H went to court for the final custody hearing, his daughter told the judge that she wanted to live with her mother again. (The mother had told her that she was going to drug and alcohol counseling and made a lot of promises to the daughter) The judge agreed to let the daughter go back with her mother. H had custody for 4 months, in which time his child support was 'suspended' (I think that's the word they used). Now, the mother is sueing H for child support for the time <B> he </B> had custody. H took his concerns to the Child Support Enforcement Agency where they held an Administrative Review. CSEA told H that in the court papers awarding custody to the mother, the judge stated that "All previous orders are rescinded" meaning that they never 'existed", so H was indeed responsible for this 2,000 worth of child support. Now, we are going back to court on December 1st to continue to fight this action, as we do not feel it is right to pay H's ex 2,000 for a time when she did not have the child in her care. I also must tell you that no support was ordered to H from the ex during the period that H had custody. At this point we cannot afford an attorney (as we still owe around 1,000 to the attorney who handled the custody case and a 4,000 funeral bill for H's father). So my question is this: How do we fight this? And what do you think our chances of winning are?<P>Thanks for taking the time to read this, and if you decide to answer it, I really appreciate it.<P>Gabbie

Gabbie:<P>I do answer some <I>general</I> legal questions, but I always caution the people I talk to that I'm NOT a family lawyer. I don't have any experience in divorce and custody matters. I only know general legal principles that I learned in law school and in studying for the bar exam. <B>NO ONE SHOULD RELY EXCLUSIVELY ON MY ASSISTANCE BECAUSE IT'S NOT INTENDED AS LEGAL ADVICE. FURTHERMORE, I'M ONLY LICENSED IN ILLINOIS AND TEXAS, SO I HAVE NO AUTHORITY TO GIVE ADVICE TO PEOPLE IN OTHER STATES, AND MY HELP HERE IS NOT INTENDED AS A SUBSTITUTE FOR COMPETENT LEGAL ADVICE IN YOUR STATE.</B><P>That being said, I can at least help you understand the principles at work. In your case. I'm sure you know that all states allow people to represent themselves without an attorney. It's called going <I>pro se</I>. Courts don't like it because non-attorneys are usually not familiar with court rules and procedures, and they have a distinct disadvantage against parties represented by a lawyer. However, you CAN represent yourself if you choose to.<P><B>How do you go about fighting the award of child support for the Ex in that situation?</B><P>I'm not really sure. What state are you in? What's the legal precedent? You should try looking up some old cases dealing with this issue to see what courts have done in the past. Go to your local county courthouse to the law library they maintain. Most courthouses have a law library open to the public from at least 8:00 AM to 5:00 PM. The law librarians are usually very good at helping novices with researching case law. It's not very hard once you understand the numbering systems and how the cases are reported.<P>It seems unfair to me that your H would have to pay child support to his ex during a time when your H had custody of the child. The whole purpose of child support is to pay for necessaries that the child needs. If your H had custody during those four months, he already paid for those necessaries at the time they arose. In essence, the award of $2000 is double-taxing him for that period.<P>I'd need to see the final child support order to answer your question more fully, but here's the short answer:<P>If there is NO mention of the four month period of time in the final settlement, then your H is probably screwed. His lawyer should have made sure that the final settlement indicated that period of time when he had custody and specifically excepted it from the final award.<P>Nevertheless, the law in most states ONLY allows for the custodial parent to have child support for the time they actually had custody of the child. If you can prove that H's daughter was in the physical custody of your H for four months and you can get Ex to admit it, then I don't see how a judge, in the interest of fairness, wouldn't overrule her right to support for that period of time.<P>Really, I think you need to talk to a lawyer about it. I know you can't afford it, but can you afford $2000 to Ex?<P>Wish I could be of more help.<P>------------------<BR>/// Lone Star * ///<P>

I liked your "legal statement" about not really offering legal advice. Kind of makes you sound like an attorney! <P>hehe...just thought it was funny

LoneStar,<P>Yes, we have proof that we had custody for those 4 months and the judge is already aware of this. We went through helf a day in court with H's ex, even though the daughter wished to move back in with her mother, we didn't feel that was what was in her best interests at that time and continued the battle for custody. But because she is 14 years old, the judge said he really had no choice but to follow her wishes at that time.<P>We think that the judge just 'mis-wrote' his final judgement.<BR>Do you mind if H uses your statement in court? <BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>The whole purpose of child support is to pay for necessaries that the child needs. If your H had custody during those four months, he already paid for those necessaries at the time they arose. In essence, the award of $2000 is double-taxing him for that period.<BR><HR></BLOCKQUOTE><P>Of course we would modify that slightly. <P>As far as being able to afford the 2,000 to the ex..well, we just recieved papers in the mail this week informing us that the amount will be deducted from his income tax return. I called child support and they said that if H wins the case on December 1st then he can be removed from that list and his tax return will come directly to him.<P><BR>Thanks for the advice. <BR>

Paul:<P>I guess if I sound like a lawyer, it's cuz I am one! <P><BR>Gabbie:<P>Feel free to use my statement, just don't attribute it to me. I don't need any troubles regarding the Unauthorized Practice of Law!<P>Glad I could help, even if only just a little. <P>------------------<BR>/// Lone Star * ///<P>

LoneStar,<P>Thanks a bunch! <P>haha I can just see it now...me in a court room with H's ex wife standing there and me saying "But your Honor..some guy that I speak with on the internet at the Marriage Builders web site about my martal problmes is an attorney and he says "quote here". LOL! <P>Makes me laugh!<P>Thanks again!<P>Gabbie

LoneStar,<P>I hate to bother you again, but I have another legal question. I realize that you don't deal in family law, but if you could tell me anything you know at all on this subject, it would really help me out.<BR>My 10 year old daughter says that she wants to spend both Christmas and Thanksgiving with me this year. Her father, however is playing harda** and says that since I had her on Thanksgiving last year, he gets her this year. Can she, as a 10 year old, make that decision on her own? Obviously we don't have the time to take this matter to court before the holidays, so I have to do what I think is in the best interest of my child. She does NOT want to go with her father, and has made that clear. Her main reason for not wanting to go with him is because he stays at home, orders pizza, and plays games all day for most of his holidays. He has been *shunned* by most of his family and they don't include him in their celebrations. She doesn't want to miss out on the family traditions we have established for the holidays. He has threatened to have the police come with him and have her "physically removed" from my home. Can he legally do this?<P>Thanks again!<P>Gabbie<BR>

Gabbie:<P>Does H live nearby?<P>------------------<BR>/// Lone Star * ///<P>

LoneStar,<P>He lives 2 1/2 hours away.

LoneStar,<P>one more thing. This whole mess started because this weekend is his scheduled visit with her. He canceled due to other, more important plans. He claims that it is his right to have her on Thanksgiving, from Wednesday through Sunday to 'make up' for missing this weekends scheduled visit. I told him that was BS..it clearly states in our papers that if the non-residential parent cancels a visit, it is considered to be forfeited, and does not have to be rescheduled. We have never gone much by what the papers say, as we have always been able to agree on changing weekends and such, but when I told him he could have her Wed-Friday, but I wanted her home Friday evening for other family plans Saturday morning, he flipped on me and said "I have every right to get her, and will do so, regardless of who has plans with who." That is also when he threatened to bring the police, if necessary. Our daughter has told him that she wishes to spend the holiday and weekend with me, but he told her that was tough..he is entitled to visitation, at HIS convinence.

Gabbie:<P>I don't know what state you're in, or what the judges are like in that state, but judges here in Texas HATE it when people come into court on matters that <I>should</I> be easily resolved without court interference.<P>Here's my advice, which is NOT intended as LEGAL advice. It's intended as common sense advice:<P>Ask H if you can work something out so that he gets to see her over some other type of break. Tell him he can have an extra week over the summer if he'll accede to your daughter's desire to spend the holiday's with YOU.<P>OR,<P>Give him a few extra hours for the next few weekends, or give him a few days at Spring Break, or something.<P>Once you get him to agree to something, memorialize it in a letter and send him the letter, CERTIFIED MAIL: RETURN RECEIPT REQUESTED. Be sure to add in the letter that you're making this arrangement as a ONE TIME accommodation, and that you don't intend to modify the custody order.<P>There's GOT to be a way to work it out with him without involving the judge or the police. You've got to convince him it's not YOUR idea that she stay with you for the holiday, it's your daughter's idea and it means a lot to him.<P>If you can't work something out, then, in the interests of family harmony, LET HIM HAVE HER. But, again, memorialize in writing the fact that you're letting him have her for longer than the custody agreement allows as a ONE TIME accommodation.<P>I'm not sure if 10-years old is old enough to factor in the child's wishes with regard to visitation rights. I would speculate that a judge would give it SOME weight, but probably not make it a dispositive consideration.<P>As for time to contest your H's actions, you COULD get a lawyer to file an emergency motion that could be heard quickly. At least, you could do that in Illinois when I practiced law there AND here in Texas. Call a lawyer and ask them what you can do.<P><B>Disclaimer:</B><BR><I>This is not intended to be relied upon as legal advice. Nothing said above means to imply that an attorney-client relationship has been created. You should seek the advice of an attorney in your state who can review all of the relevant facts with you. If you rely on the advice above, you do so at your own risk.</I><P>------------------<BR>/// Lone Star * ///<p>[This message has been edited by Lone Star (edited November 19, 1999).]

LoneStar,<P>Thanks for taking the time to answer me on this one. I have tried for the past 2 days, both on the phone and through email to come to an agreement with my ex-husband. I offered him the first two weekends in December, he said he wanted the first 3 weekends in December, I told him he would have to work that out with his mother, as she had already contacted me 6 weeks ago to request that weekend for her Christmas with our daughter. He said his mother can go to hell, his visits with our daughter are more important than his mothers visits. I offered to let him have our daughter over the New Years holiday, but that was thrown out the window as well.<P>I just don't see how I can be made to <I> force </I> her to go with him against her wishes. This happened a few years back (after an extended absence on his part), our daughter didn't want to go with him on his scheduled weekend, and cried for hours before he came to pick her up. He picked her up, kicking and screaming and put her in his car, as she begged me to let her stay home. That was the most heart-wrenching moment of my life. I vowed then and there to never put her through that again. My first reaction was some sort of abuse might be going on, and I took her to the doctor the day he brought her home, thank God there were no signs of physical or sexual abuse. Regardless of her reasons, if she doesn't want to go with her father, I just don't see how a Judge can force her to. <P>SOrry...I am rambling..thanks again for the advice.<P>Gabbie

Gabbie:<P>Look into an emergency motion with the court to prevent him from taking her. Does the custody order specify that he gets Thanksgiving holiday? Was he scheduled to have her the weekend after Thanksgiving anyway? <P><BR><B>Disclaimer:</B><BR><I>This is not intended to be relied upon as legal advice. Nothing said above means to imply that an attorney-client relationship has been created. You should seek the advice of an attorney in your state who can review all of the relevant facts with you. If you rely on the advice above, you do so at your own risk.</I><P>------------------<BR>/// Lone Star * ///<p>[This message has been edited by Lone Star (edited November 19, 1999).]

Gabbie:<P>I thought more about your situation last night, and I just have THIS to add:<P>If your H is acting like such a child regarding his rights, a judge will be able to SEE that in his attitude. He's not likely to get very far with such a jerky attitude. It seems to me that if he cares about your <I>daughter</I> he'll try to be amenable to her wishes. It sounds to me like he's doing this because he knows it makes things tough on YOU. That's not exactly the best reason to cause emotional trauma to a child (as if there's EVER a good reason for it).<P>Perhaps you could start taping conversations with him when he acts this way. Inform him when you call him that you're recording the conversation for your OWN protection. Chances are, he'll STOP being such an [censored]. Also, if he continues to be a jerk, even after you tell him you're taping the conversation, you'll have evidence to take to a judge later.<P>Then, start working things out with him. If he won't work with you and doesn't stop being a jerk, a judge will be able to tell from his tone on the tapes. The trick is to make sure YOU remain calm at all times. If you're a jerk back to him, the tapes will show that too.<P>One caveat: I don't know the rules of admissibility of evidence in your state, NOR do I know the legality of taping conversations. In MOST states, it's legal to tape a conversation if you inform the person up front that you're taping it. If you don't, it could be illegal. <P>(BTW, make sure you get it ON the tape that you told him you're taping the conversation. If you don't have evidence that you informed him of the taping, he'll claim you never told him).<P>Check with a lawyer in your state re: the legality of this stuff and on whether it would be admissible in court. No sense taping him if you can't use it later.<P>Don't just use ONE tape and then run to a judge. Get a pattern of behavior over a period of months. If he's an [censored] every time you talk about custody plans, then you'll have a good record in no time.<P>Of course, this doesn't solve the immediate problem, but it might help solve problems that arise in the future.<P>My STRONGEST advice is that you stop circumventing the custody order and enforce its terms. That's what it's there for.<P><B>Disclaimer:</B><BR><I>This information is not intended to be relied upon as legal advice. Nothing said above means to imply that an attorney-client relationship has been created. You should seek the advice of an attorney in your state who can review all of the relevant facts with you. If you rely on the advice above, you do so at your own risk.</I><P>------------------<BR>/// Lone Star * ///<p>[This message has been edited by Lone Star (edited November 19, 1999).]

LoneStar,<P>Thanks so much for your responses. I really appreciate the time you have taken to answer my questions and offer advice.<P>I know that I should have enforced the custody order from the beginning. But for many years, ex-h and I got along so well, that we worked together on changing weekends, double weekends if there was one missed, and transportation of our daughter as he lives over 2 hours away. I don't understand what events have inspired this little temper tantrum of his, and at this point I honestly don't care. In answer to your questions: Yes, this is his year to have her on Thanksgiving...however, as I have stated before, she does not wish to spend Thanksgiving with her father. Our visitation order states that on even numbered years I get her on such and such holidays, and he gets her on such and such holidays, and we switch holidays on odd numbered years.<P>As far as submitting taped conversations to the judge, most of our correspondence have been through the email. I have saved to disk all the emails that I sent him, and the ones that he responded to. Mine are very civil..his are full of cussing, mud slinging, and name calling. So, I can always print those out to show a judge if need be. I just recieved yet another email from him, demanding to know what is going on. I emailed him back and told him that he could call our daughter at 4:30 this afternoon (right after she gets off the bus) and he could talk to her about her wishes for the holiday and the folowing weekend.<P>You asked about the weekend following Thanksgiving...no, that is not his scheduled weekend, it is mine. This weekend (tonight through Sunday) is his weekend, but he canceled, he says because of "An out of state business meeting.) I have concrete proof, however, that he is going out of state on a fun trip with a group of his friends who take trips together at various times during the year. My feeling is that if he chooses to spend his time with his friends rather than his daughter, he is not entitled to 'make up' the missed weekend. Maybe I am being unreasonable on that point, but I had made prior plans this weekend myself, and had to cancel them due to his canceling his visitation with our daughter. It happens quite often actually, that he calls 2-3 days before a scheduled visit and cancels. <P>Rambling again..sorry.<P>Thanks again!<P>Gabbie

...hi Lonestar!! Just wanted to say hi...Hope you are well!! Love this..I hope I see you smiling as I write this....<P>Interplanet Janet Disclaimer: All information from interplanet janet is intended to be relied upon as ridiculous advice. Nothing said above means to imply that any alein-client relationship has been created. You should seek the advice of an alein in your galaxy who can review all of the relevant facts with you. If you rely on the advice above, you do so at your own inter-stellular (sp) risk.<P>I see you've been busy my friend...So glad you can help people...it really is a great thing... hope you are well...this is just a quick 'hi'....<P>take care!<BR>-janet