Change Of Custody for Absent Parent

[father_of_2]

What is the name of your state? GA

I currently have a custody agreement with the mother of my son. She has not followed this order consistently for the last year and a half. For the last six months she has done nothing to support her son and only visits him one weekend a month. I was going to file a contempt of court order but is it feasible for me to file for a change of custody since the mother has basically reliquinshed her custody. I have had physical custody of him for the last year. He currently stays with with 95% of the time and I am currently his primary caregiver.

 

[CJane]

What is the current order? Who is ordered to be the residential parent? Who is ordered to pay support?

What would be your basis of contempt?

 

[father_of_2]

What is the current order? Who is ordered to be the residential parent? Who is ordered to pay support?

What would be your basis of contempt?

The current order states that she has him Tues-Friday and pay for all expenses including childcare during that time. The order is 50/50 so no one has to pay child support but she is obligated to pay for expenses during the time she is to keep him which she has not done for the last year and a half. I have had to pay all expenses. She gives nothing for his childcare, food, clothing, etc.

I have asked her does she plan on following the order and keeping him during the time or at least pay half of his daycare expense and her response was "I am going back to sleep". So at this time I have been his primary caregiver for almost the entire time the order has been in effect. And the last six months she has seen him all of about 5 times and only on the weekend. Basically she only sees him when its convienient for her to do so.

 

[CJane]

The current order states that she has him Tues-Friday and pay for all expenses including childcare during that time.

Does the order specifically state that she is to pay for child care from Tuesday - Friday every week, or does it state that she is to pay for child care while the child is in her custody? There's an important distinction there.

The order is 50/50 so no one has to pay child support but she is obligated to pay for expenses during the time she is to keep him which she has not done for the last year and a half. I have had to pay all expenses. She gives nothing for his childcare, food, clothing, etc.

Technically, if she's not ordered to, she doesn't have to pay anything while he's in your care. That's why the distinction I mentioned above is so important.

I have asked her does she plan on following the order and keeping him during the time or at least pay half of his daycare expense and her response was "I am going back to sleep". So at this time I have been his primary caregiver for almost the entire time the order has been in effect. And the last six months she has seen him all of about 5 times and only on the weekend. Basically she only sees him when its convienient for her to do so.

The order has only been in effect for 18 months?

It's a bit early to file for a modification, and that has the potential to stir up a whole hornet's nest of crap w/mom. Including her deciding that she IS going to exercise her time wtih the child and making your change of circumstances a moot point.

Please clarify EXACTLY what the order says regarding payments for daycare and who is the primary residential parent (because what you've described is not 50/50 anyway if mom is supposed to have the kid 4 days/week)

 

[father_of_2]

The order says that she is to have him from Tuesday at 12PM until Friday at 6PM. The fact that she has not done this is a violation of the order in itself.

It's a bit early to file for a modification, and that has the potential to stir up a whole hornet's nest of crap w/mom. Including her deciding that she IS going to exercise her time wtih the child and making your change of circumstances a moot point.

That is exactly that point. If I have to file a change for her to act like a mother then sobeit.

Please clarify EXACTLY what the order says regarding payments for daycare and who is the primary residential parent (because what you've described is not 50/50 anyway if mom is supposed to have the kid 4 days/week)

The order is for joint legal and physical custody. Techincally the order is for her to keep him 3.5 days a week during which time she provides her own daycare. But for the last year and a half I have been the primary residential parent and she has provided nothing.

The point here is that if you are order to keep your child for 3.5 days a week and during that time provide daycare by whatever means but instead you violate the order and someone else has to provide daycare during that time how is she not responsible for that? Not to mention the fact that she provides nothing else for his care.

 

[CJane]

The order says that she is to have him from Tuesday at 12PM until Friday at 6PM. The fact that she has not done this is a violation of the order in itself.

Not technically. The 'problem' with visitation and custody is that it's not contempt to not take the child... it's only contempt to withhold the child.

I have my kids every Sunday night through Wednesday morning. But, if I just didn't show up to get the kids on Sunday night when my ex brings them to the drop off location, I'm not in contempt. If he doesn't show up at the drop off location, he IS in contempt.

That is exactly that point. If I have to file a change for her to act like a mother then sobeit.

You have to have a significant change in circumstances in order to successfully change custody. You have that. And you could probably get orders granting you custody and Mom visitation just based on status quo for the child. But that's no guarantee that Mom will actually pay support, even if ordered.

The order is for joint legal and physical custody. Techincally the order is for her to keep him 3.5 days a week during which time she provides her own daycare. But for the last year and a half I have been the primary residential parent and she has provided nothing.

Honestly, it doesn't sound like she's ordered to provide anything if the child is not in her care.

The point here is that if you are order to keep your child for 3.5 days a week and during that time provide daycare by whatever means but instead you violate the order and someone else has to provide daycare during that time how is she not responsible for that? Not to mention the fact that she provides nothing else for his care.

Doesn't sound like contempt.

 

[father_of_2]

So basically this is a big loophole in the legal system whereby a parent can essential not have to support their child by simply refusing to pick them up when they are scheduled to do so? And the only legal way around this is to file for a change in custody and pursue child support? LOL Wow Im sure if I were the mother in this position the court would see this in a whole different light.

 

[CJane]

So basically this is a big loophole in the legal system whereby a parent can essential not have to support their child by simply refusing to pick them up when they are scheduled to do so?

Yes. No judge is going to FORCE someone to spend time with their child.

And the only legal way around this is to file for a change in custody and pursue child support?

Yes.

LOL Wow Im sure if I were the mother in this position the court would see this in a whole different light.

Nope. Read some of the threads around here by women trying to facilitate a relationship with an absent father. In this case at least, the law is gender-blind.

 

[father_of_2]

Ok so to follow up on my last response I wanted to ask if Its possible to file a Change of Custody by publication if I have no idea where the mother resides and she refuses to tell me. I assume this is because she does not want to be served. In GA I read that you can file by publication if it has been 6 months and you currently do not know where the other parent resides in the state. They mentioned the word "abandoned" as to indicate that the parent has not had any contact with the child during that 6 month time period. If she sees the child ocassionally like once a month but has not provided a legal residence can this still be considered "abandonment"?

 

[TinkerBelleLuvr]

abandonment means NO contact. You might want to have papers READY to serve. When she comes to pick up the child, SOMEONE else has to serve them (not you). You can have a process server waiting when she returns the child.

 

[father_of_2]

abandonment means NO contact. You might want to have papers READY to serve. When she comes to pick up the child, SOMEONE else has to serve them (not you). You can have a process server waiting when she returns the child.

That is a great idea. I had to have an attorney hire the last process server in the last custody case who served her at her old residence. Is it as simple as hiring a process server and giving them the court papers? Is it possible to have someone served at their workplace?

 

[CJane]

That is a great idea. I had to have an attorney hire the last process server in the last custody case who served her at her old residence. Is it as simple as hiring a process server and giving them the court papers? Is it possible to have someone served at their workplace?

In my state you have to file w/the court to have a special process server if you're not using the Sheriff's department.

Yes, it's possible - and even preferable - to have someone served at their workplace. Simply give as much info to the Sheriff's department/process server as you can. I called the SD every day when I was trying to get my ex served and gave them exact times/places I knew he'd be.

Serving by publication is very tricky and almost always has to be approved by the court in advance... because it's so easy for the other party to claim improper service. It's a last resort for a reason.

You can also send mail to her last known address and request that the postal service notify you of where it was forwarded to.

 

[cayman]

I am going through pretty much the same thing. In CA I believe there are statutes regarding reimbursement. Being repaid may never happen, however I’m still going to have a wage attachment ready for the judge.

Also, my parenting time log is basically hearsay. It's important that I get mom in front of the mediator.