Need advice (long winded..sorry :) CHILD SUPPORT

[adb81]

What is the name of your state (only U.S. law)? California

I will sum up our situation as best as possible. My husband had left for a military deployment in June 2011, prior to the deployment there were current custody/visitation orders in place, where his children resided with him and mother was allowed to see children monday-friday afterschool until 5pm and every other weekend, no support was being paid to the mother (support has never been exchanged between either party) (she has not held a job in nearly 3 years and is on welfare) she had not adhered to current order for 16 months, only chose to see the kids one day a week. As soon as she got wind of his deployment she took him to court, was awarded the kids for the duration of the deployment and the based on his income they were going to award her $3300 a month in child support. There is no way we as a family could have afforded that amount and still have paid our own rent/bills. They plea bargained back and forth and agreed (he was forced or they would have went for the throat and got the $3300) on $2150 with the stipulation that upon his return they go to a week on week off and mother does not have to return to court and file an OSC to get more custody with the kids. Judge wanted to go back to the original order of mother seeing kids Monday-Friday and every other weekend, but that was based on us paying the full $3300, which as I said would have been impossible for us. He has recently asked about the custody situation on his return and mentioned that if they follow through with week on week off, that the support should be halved to $1075. She says the support is remaining the same, according to the court order, because 'she did him a favor by not taking the $3300 and accepted less'

CAN WE FIGHT THIS WHEN HE RETURNS? I mean they had orders in place, and she never adhered to them, we had piles of legit documention against her skills as a mother, (SARB reports from school...declarations from former friends/neighbors about drug use and men in the house on the last deployment they were married) none of which helped our case. Will he be able to file an OSC to get the amount lessened to a more fair amount of $1075 based on 50/50? I see nowhere in the court paperwork where it states that the support will remain at $2150 based on 50/50.

Sorry for being so long winded, this whole situation has been near and dear to my heart and very stressful as well, as I see the kids daily and the money is not being used for child support to it's fullest extent. I receive child support for my 2 children and it is 1/4 of what she recieves, and that is by my own choice, I will never take what I am 'entitled' to, I do not need that much money, as I work myself and make an income. California courts seem to favor the mother no matter what, regardless of their history as a parent and their lack of wanting to get a job. Why should the other parent have to make up that difference. It's ridiculous.

 

[mistoffolees]

What is the name of your state (only U.S. law)? California

I will sum up our situation as best as possible. My husband had left for a military deployment in June 2011, prior to the deployment there were current custody/visitation orders in place, where his children resided with him and mother was allowed to see children monday-friday afterschool until 5pm and every other weekend, no support was being paid to the mother (support has never been exchanged between either party) (she has not held a job in nearly 3 years and is on welfare) she had not adhered to current order for 16 months, only chose to see the kids one day a week. As soon as she got wind of his deployment she took him to court, was awarded the kids for the duration of the deployment and the based on his income they were going to award her $3300 a month in child support. There is no way we as a family could have afforded that amount and still have paid our own rent/bills. They plea bargained back and forth and agreed (he was forced or they would have went for the throat and got the $3300) on $2150 with the stipulation that upon his return they go to a week on week off and mother does not have to return to court and file an OSC to get more custody with the kids. Judge wanted to go back to the original order of mother seeing kids Monday-Friday and every other weekend, but that was based on us paying the full $3300, which as I said would have been impossible for us. He has recently asked about the custody situation on his return and mentioned that if they follow through with week on week off, that the support should be halved to $1075. She says the support is remaining the same, according to the court order, because 'she did him a favor by not taking the $3300 and accepted less'

CAN WE FIGHT THIS WHEN HE RETURNS? I mean they had orders in place, and she never adhered to them, we had piles of legit documention against her skills as a mother, (SARB reports from school...declarations from former friends/neighbors about drug use and men in the house on the last deployment they were married) none of which helped our case. Will he be able to file an OSC to get the amount lessened to a more fair amount of $1075 based on 50/50? I see nowhere in the court paperwork where it states that the support will remain at $2150 based on 50/50.

No. WE can not do anything. You are not part of it and have no place in the discussion. It's your husband's problem.

Now, your husband really should have a lawyer. However, he really didn't give anything up. Their negotiated agreement is worthless. You can't negotiate a future custody situation. Rather, when he returns, he can argue for custody to be returned to him.

As for Child support, he can use the state calculator to see how much the court would order.
Calculate Child Support

 

[LdiJ]

No. WE can not do anything. You are not part of it and have no place in the discussion. It's your husband's problem.

Now, your husband really should have a lawyer. However, he really didn't give anything up. Their negotiated agreement is worthless. You can't negotiate a future custody situation. Rather, when he returns, he can argue for custody to be returned to him.

As for Child support, he can use the state calculator to see how much the court would order.
Calculate Child Support

Actually they agreed that 50/50 would be in place when he returned. He can certainly file for a modification of both custody and child support when he returns, but unless things go badly (and it can be proven with hard evidence) for the children while he is gone, I suspect that a judge would feel that after spending a year or more with their mother, that 50/50 would be in their best interests.

 

[CourtClerk]

Actually they agreed that 50/50 would be in place when he returned. He can certainly file for a modification of both custody and child support when he returns, but unless things go badly (and it can be proven with hard evidence) for the children while he is gone, I suspect that a judge would feel that after spending a year or more with their mother, that 50/50 would be in their best interests.

***sigh***

3047. (a) A party's absence, relocation, or failure to comply with
custody and visitation orders shall not, by itself, be sufficient to
justify a modification of a custody or visitation order if the reason
for the absence, relocation, or failure to comply is the party's
activation to military duty or temporary duty, mobilization in
support of combat or other military operation, or military deployment
out of state.
(b) (1) If a party with sole or joint physical custody or
visitation receives temporary duty, deployment, or mobilization
orders from the military that require the party to move a substantial
distance from his or her residence or otherwise has a material
effect on the ability of the party to exercise custody or visitation
rights, a modification of the existing custody order shall be deemed
a temporary custody order, which shall be subject to review and
reconsideration upon the return of the party from military
deployment, mobilization, or temporary duty. If the temporary order
is reviewed upon return of the party from military deployment,
mobilization, or temporary duty, there shall be a presumption that
the custody order shall revert to the order that was in place before
the modification, unless the court determines that it is not in the
best interest of the child.

 

[CourtClerk]

By the way OP, that same law allows your husband to petition the court for visitation of your stepchildren with you while your husband is deployed. I suggest you avail yourself of that...

 

[adb81]

Thanks for the replies. I understand this is 'his' issue, but WE are a family, and I consider this to be OUR issue. I am their stepmother and same applies to my children, he is their stepfather. I understand I have no say in the matter, in a court environment, but these are my step-children, and I was the only active female role in their lives for years until mother got wind of the deployment and knew she could get money.

We feel that it is in the best interests of the children to stick with 50/50 when he returns, we all live within 1/2 mile of one another. My question was the support amount and wether that can be changed. If so, would they most likely take half of the original amount ($3300)? So we are looking at paying $1650 for 50/50? $1075 is more than fair, and it would be half of what she is receiving right now, which makes complete sense if custody is going to be halved.

I do see the children, and that was put into the court orders prior to deployment.

I quit my job because of all of this and started an in home daycare where I have the opportunity to make more monthly, so the $2150 going out wouldn't kill us financially. If we are going to pay that same amount, and have the children 2 weeks out of the month, we are going to be hurting a great deal. A family of 7 is a lot to feed. Just trying to get a heads up, so I can look into getting a second job if need be.

 

[CourtClerk]

You may want to get another job. Support will be based on the guidelines unless both parties agree to a deviation.

childsup.ca.gov has a CS calculator

 

[LdiJ]

***sigh***

You can do the whole rolly eyes bit as much as you like, but obviously you didn't read the original post carefully. This wasn't a case of mom simply being given temporary custody while dad was deployed.

It was something negotiated between the parents and they AGREED that once dad's deployment was over that it would be 50/50 custody from that point forward. Apparently dad agreed to it in order to avoid paying the full child support amount that was calculated, but it was an agreement nevertheless.

Therefore the statute you quoted is completely irrelevant. Once again, dad can certainly file for a modification of said agreement if dad has decent cause to do so. However, if dad cannot demonstrate that there is a darned good reason to vacate his agreement, his agreement could very well stand.

Serious CC, your desire to disagree with me shouldn't preclude you making sure of what you speak before you get all indignant.

 

[CourtClerk]

You can do the whole rolly eyes bit as much as you like, but obviously you didn't read the original post carefully. This wasn't a case of mom simply being given temporary custody while dad was deployed.

It was something negotiated between the parents and they AGREED that once dad's deployment was over that it would be 50/50 custody from that point forward. Apparently dad agreed to it in order to avoid paying the full child support amount that was calculated, but it was an agreement nevertheless.

Therefore the statute you quoted is completely irrelevant. Once again, dad can certainly file for a modification of said agreement if dad has decent cause to do so. However, if dad cannot demonstrate that there is a darned good reason to vacate his agreement, his agreement could very well stand.

Serious CC, your desire to disagree with me shouldn't preclude you making sure of what you speak before you get all indignant.

Ohhh Ld. Really, you shouldn't let someone you don't know get so far under your skin. You need real world friends.

It's very simple. Dad can agree all he wants, he simply goes back to court when he gets back. He's got the law on his side. His agreement could very well stand and Sputnik could hit the Earth next Tuesday too.

Believe me when I say to you that you are SO INSIGNIFICANT in my life that I don't try to disagree with you. You make it very easy and I don't even have to try at it.

 

[mistoffolees]

You can do the whole rolly eyes bit as much as you like, but obviously you didn't read the original post carefully. This wasn't a case of mom simply being given temporary custody while dad was deployed.

It was something negotiated between the parents and they AGREED that once dad's deployment was over that it would be 50/50 custody from that point forward. Apparently dad agreed to it in order to avoid paying the full child support amount that was calculated, but it was an agreement nevertheless.

Therefore the statute you quoted is completely irrelevant. Once again, dad can certainly file for a modification of said agreement if dad has decent cause to do so. However, if dad cannot demonstrate that there is a darned good reason to vacate his agreement, his agreement could very well stand.

Not really. He doesn't have a valid agreement.

If they took it to court, it's invalid because the judge can't base a future custody decision on "what if" considerations.

If they didn't take it to court, there's no binding agreement.

State law is likely to control this one.

 

[adb81]

On the paperwork it has the following boxes ticked:

It is hereby stipulated by the parties that
The Court make orders consistent with the following checked items

Child custody/visitation and Child support (both ticked)- hand written in, it states 'non guideline support, $2150 to be issued half on the 1st and half on the 15th of every month

Then at the bottom it states furthermore, parties agree to:

(handwritten in) - The parties agree that the respondent doesn't have to refile for custody upon petitioners return from deployment and custody will revert to week on week off.

She took him to court back in Aug.09 to get more time with kids, and didn't adhere to order for 16 months. If it was that easy for her to change this, why shouldn't it be easy for him to go in and file an OSC?

I could really do without the sarcasm and rude remarks of 'you should get another job.' No one will truly understand how hard it is to have 3 children torn away from you by a selfish woman out for a paycheck who has lived down the street our entire relationship and has wanted nothing to do with these kids. So losing 3 kids to a shedevil, (all because we didn't have the actual marijuana pipe and photos of her stripping while the kids were with the neighbor, ya know the HARD evidence) and watching my husband board a plane to Afghanistan, and see my 2 daughters cry at an empty supper table WAS PURE HELL.

 

[LdiJ]

Not really. He doesn't have a valid agreement.

If they took it to court, it's invalid because the judge can't base a future custody decision on "what if" considerations.

If they didn't take it to court, there's no binding agreement.

State law is likely to control this one.

Then state law would also be invalid, because state law is basing custody on a future event. Then any phased in agreement is invalid, because phased in agreements base custody on a future event. Then any state guidelines that go in phases are invalid, because they base custody on a future event.

There are hordes of things in state law that parents agree to differently in mediation, and that does not make their agreements invalid. State law controls when the parents are not in agreement.

Yes, its possible that if dad takes it back to court he may get what he wants. However, its also quite possible that he will not unless he can demonstrate a change in circumstance that makes his agreement no longer valid.

 

[LdiJ]

On the paperwork it has the following boxes ticked:

It is hereby stipulated by the parties that
The Court make orders consistent with the following checked items

Child custody/visitation and Child support (both ticked)- hand written in, it states 'non guideline support, $2150 to be issued half on the 1st and half on the 15th of every month

Then at the bottom it states furthermore, parties agree to:

(handwritten in) - The parties agree that the respondent doesn't have to refile for custody upon petitioners return from deployment and custody will revert to week on week off.

She took him to court back in Aug.09 to get more time with kids, and didn't adhere to order for 16 months. If it was that easy for her to change this, why shouldn't it be easy for him to go in and file an OSC?

I could really do without the sarcasm and rude remarks of 'you should get another job.' No one will truly understand how hard it is to have 3 children torn away from you by a selfish woman out for a paycheck who has lived down the street our entire relationship and has wanted nothing to do with these kids. So losing 3 kids to a shedevil, (all because we didn't have the actual marijuana pipe and photos of her stripping while the kids were with the neighbor, ya know the HARD evidence) and watching my husband board a plane to Afghanistan, and see my 2 daughters cry at an empty supper table WAS PURE HELL.

Look, these children have a mother and she had the right to have them with her while their father was not available to care for them. I understand that you and your children love them, but you are not their mother.

I will also tell you that pot, and stripping, probably would not have made a difference even if your husband could have proven that. Neither of those necessarily make a parent legally unfit.

Yes, it was easy for her to get temporary custody while dad was deployed, which is as it should be. However the only reason she also got the week on, week off after dad returns from deployment is because dad AGREED to it. If he had not, she would not have received it.

 

[mistoffolees]

Then state law would also be invalid, because state law is basing custody on a future event. Then any phased in agreement is invalid, because phased in agreements base custody on a future event. Then any state guidelines that go in phases are invalid, because they base custody on a future event.

There are hordes of things in state law that parents agree to differently in mediation, and that does not make their agreements invalid. State law controls when the parents are not in agreement.

Yes, its possible that if dad takes it back to court he may get what he wants. However, its also quite possible that he will not unless he can demonstrate a change in circumstance that makes his agreement no longer valid.

None of those things are dependent on a future event. When the state grants custody, it is based on the current circumstances. When the state has a phased-in agreement, it may or may not be valid. If the agreement is dependent on nothing more than the passage of time, then it's probably valid.

OP's case is clearly a conditional custody order - which is not valid. Furthermore, they can ask for a change in child support at any time, so the agreement as to future child support is not going to be particularly useful, either.

 

[LdiJ]

None of those things are dependent on a future event.

So the state statute saying that dad gets custody when he returns from deployment is not a future event?

When the state grants custody, it is based on the current circumstances. When the state has a phased-in agreement, it may or may not be valid. If the agreement is dependent on nothing more than the passage of time, then it's probably valid.

OP's case is clearly a conditional custody order - which is not valid. Furthermore, they can ask for a change in child support at any time, so the agreement as to future child support is not going to be particularly useful, either.

There are actually no laws that state that custody cannot be set based on a future event or a conditional event. It is something that is understood, because custody is fluid and modifiable based on the best interests of the children, but there is no actual statutes that state that.

Of course the order is conditional. It would be conditional even if it stated that custody would be returned to dad, because unfortunately there is always the chance that dad might not return.