Grounds for Modification Question (Painfully Long)

[Monarch]

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

I'm sorry for the length of this -- I was trying to be complete but likely went overboard into babbling.

I need some input, please (and possibly some head smacking). I worked as a secretary in family law for two years so I know a few of the basics, but I'm concerned that my perception may be clouded due to lack of perspective in this particular instance.

For some background:
My ex-husband and I have joint legal custody of our children (two, elementary school aged), and I have primary residential responsibility. Visitation is ordered as standard per his request.

He was offered more than the standard visitation and declined; at this time he chooses to exercise his visitation only once a week, for between two and three hours.

In our MSA we agreed that child support would be forgiven for the first six months following the final judgment, and would then be payable in the amount of $400.00 per month. This was calculated by adding the allowed child care amount and imputing minimum wage to my ex as at the time of the separation and divorce he was unemployed and suffering from an acute attack of gout.

He got a job with pay exceeding the imputed wage by a bit two months before the child support payments were due to start.

He didn't pay for the entirety of 2008, so we agreed to set off his arrearages in exchange for me purchasing some property he was initially assigned in the MSA. We have executed a document to that effect (signed and notarized) to protect each of us individually.

He started 2009 with no arrearages, but has yet to make a payment as of this date. I will be filing a contempt motion against him shortly, so that's not the primary issue.

The meat of the matter:
The issue is that he is now threatening to file for a modification of custody on the grounds that I didn't tell him I am getting remarried (I haven't even set a date -- our kids told him), and he hasn't met my fiance.

My ex has known for a year that I've been dating this man. I let him know that any information needed for a background check would be provided to a neutral third party, should he so desire. He told me that wouldn't be necessary, that he knew I wouldn't have anyone harmful around our children.

I asked my ex at that time if he wanted to meet him. He said not at that time, but he'd let me know.

Since then, he has had an open invitation for an introduction to the man, as well as three more specific opportunities and offers to meet him which he has refused. The last of those occurred just a month ago.

My thoughts:
It appears to me that my ex has limited grounds to request a modification of custody.

-He sees our children only 2-3 hours per week, by his choice.

-He hasn't exercised his weekend or overnight visitation in over eight months.

-He goes weeks between visits, as he won't see them if they're ill (he might catch it) or when he's ill.

-He forgets that it's his visitation day and doesn't pick them up.

-I have offered him additional visitation when he's had to miss visits due to illness or his work schedule. He has declined that visitation because his second day off is "the day [he] use to get everything done [he] can't do while [he's] at work."

-He never calls them when he misses visits, on Christmas or other holidays, on their birthdays, at no time.

-He has long-term knowledge that I have been dating this man and have exposed him to our children, and in that time he has not requested the background check which I offered, he hasn't accepted offers I have made to introduce them, nor has he asked to meet him at any time.

I'm torn, because on the one hand I wonder if I should have made a bigger deal out of him meeting my boyfriend. I wonder if I should tell the kids to call their father (he lives five minutes from us by car). I wonder if requesting an IDO is fair because although the agreed-upon child support is below the state's amount it will still impact his ability to continue to live here.

On the other hand, he's an adult. He has known I've been dating this man for ages, and he's a big boy and can say, "Would you introduce us?" He has a phone. He knows how to use it, and knows I'll answer it. He agreed to pay the $400 a month in child support, and has had ample opportunity to make plans to be able to do so.

So, I guess I want to know if I'm being a wimp or a witch-with-a-capital "B". Am I acting like a martyr (I know I'm not one -- I'm hardly perfect myself), or should I grow a spine?

And I'm also terrifed that me remarrying could/ will constitute a significant change in circumstances which, when coupled with my failure to tell him of my remarriage on my own (regardless of my reasons), will result in a judge changing our agreed-upon custody arrangement. So if anyone has any ideas on that, I'd like to hear them as well.

For the record, I have no plans to move. The children's location and school will remain exactly as it was at the time of the signing of the MSA.

I'm just a bit tired of him threatening our children's situation when he's angry with me.

 

[pittrocks]

Seniors correct me if I'm wrong, but it doesn't sound like he'll have much of a foundation to modify custody on those reasons.

If he isn't really utilizing his visitation as it is, then doubtful he'd get more custody simply because you're remarrying.

BTW--it was decent of you to offer a background check and a personal meeting with your fiance. Since your ex hasn't taken you up on it, that falls on him.

If ex isn't calling the kids, it might be a nice gesture every so often to have them call him. Or you could e-mail him and tell him in a polite way that you feel it's important that he maintain contact with the kids.

As long as you're not trying to replace Dad with the new hubby, I don't think you're doing anything wrong.

good luck!

 

[LdiJ]

Seniors correct me if I'm wrong, but it doesn't sound like he'll have much of a foundation to modify custody on those reasons.

If he isn't really utilizing his visitation as it is, then doubtful he'd get more custody simply because you're remarrying.

BTW--it was decent of you to offer a background check and a personal meeting with your fiance. Since your ex hasn't taken you up on it, that falls on him.

If ex isn't calling the kids, it might be a nice gesture every so often to have them call him. Or you could e-mail him and tell him in a polite way that you feel it's important that he maintain contact with the kids.

As long as you're not trying to replace Dad with the new hubby, I don't think you're doing anything wrong.

good luck!

I will agree with this. He has absolutely no grounds to modify custody just because you are getting married. He is grasping at straws because he does not want to pay child support.

I will also add that while it was very nice of you to provide him the necessary info to do a background check, and to offer to let him meet your fiance, you were actually under no obligation to do so legally.

 

[Monarch]

Thank you both very much.

I might as well have them call him and leave him a message or something (he works odd hours) especially as a new male figure will be entering the house. That will help cement that "Daddy is ALWAYS your daddy," a fact of which I've assured them. The older one hasn't asked, but the younger one did.

And although it's not necessarily a legal requirement that I offer to introduce my ex to my fiance and offer background check information, it's a gesture of good faith and was very much emphasized at the Parents, Children & Divorce class my ex and I both attended (required in any divorce with children per state law).

He's worried about child support, I'm sure is part of it; also, after the above-referenced course I did assure him that of course I'd keep him informed and introduce him to anyone who was going to be around our children for any appreciable period of time, and that hasn't occurred.

That assertion of mine was, however, prior to some very difficult incidents. At this point I try to keep our discussions centered on the children and any financial/ property matters that crop up.

 

[Ohiogal]

I will agree with the other two posters.

 

[Monarch]

Thank you very much, OG

 

[wileybunch]

OP, the background check was not necessary, but you did offer it and he declined so he can't even claim something tangible about the man and him being a danger to the kids.

That said, don't offer it again. I realize it was your idea, but he doesn't even have any grounds to expect that sort of information. It's funny how ex's get so jealous about remarriage -- even ex's that were the ones to leave in the first place. It happens all the time.

 

[Monarch]

OP, the background check was not necessary, but you did offer it and he declined so he can't even claim something tangible about the man and him being a danger to the kids.

That said, don't offer it again. I realize it was your idea, but he doesn't even have any grounds to expect that sort of information. It's funny how ex's get so jealous about remarriage -- even ex's that were the ones to leave in the first place. It happens all the time.

Thanks Wiley -- I thought his refusal put the onus on him, but it's good to have clarification. And no, I won't be offering it to him again. If he requests one that's all well and good, but I have a feeling if I offer it he'll be wanting me to pay for it as well, and considering I'm the sole financial support of our kids, things aren't as, erm... fluid as I'd like them to be

As for the remarriage issue, it's such a mixed bag isn't it? I think feeling unsettled when your ex remarries is a pretty normal response from what I've read, even in cases of fairly amicable dissolutions. I mean, here you've dealt with your ex to forge a workable relationship with the two of you regarding your children (and possibly other outstanding marital matters), and now your ex is going and adding another potential influence into the mix! Plus, that person was once "yours" on some level. And although they're not now and haven't been for awhile -- perhaps even by your own choice -- you're able to at least look back on the good times fondly, and even on occasion irrationally miss those days.

Once an ex remarries, the last vestige of what was once an intact family is gone. So yeah, I can see why my ex isn't precisely jumping for joy... but I'm also rather annoyed with him for throwing custody modification into the mix. To put it mildly.

Oh well, you pays your money and you takes your chance. In the end we managed to produce two awesome kids together, so that's something at least.

 

[Rushia]

Thanks Wiley -- I thought his refusal put the onus on him, but it's good to have clarification. And no, I won't be offering it to him again. If he requests one that's all well and good, but I have a feeling if I offer it he'll be wanting me to pay for it as well, and considering I'm the sole financial support of our kids, things aren't as, erm... fluid as I'd like them to be

As for the remarriage issue, it's such a mixed bag isn't it? I think feeling unsettled when your ex remarries is a pretty normal response from what I've read, even in cases of fairly amicable dissolutions. I mean, here you've dealt with your ex to forge a workable relationship with the two of you regarding your children (and possibly other outstanding marital matters), and now your ex is going and adding another potential influence into the mix! Plus, that person was once "yours" on some level. And although they're not now and haven't been for awhile -- perhaps even by your own choice -- you're able to at least look back on the good times fondly, and even on occasion irrationally miss those days.

Once an ex remarries, the last vestige of what was once an intact family is gone. So yeah, I can see why my ex isn't precisely jumping for joy... but I'm also rather annoyed with him for throwing custody modification into the mix. To put it mildly.

Oh well, you pays your money and you takes your chance. In the end we managed to produce two awesome kids together, so that's something at least.

I would like to commend you on your thoughts regarding you ex. Sometimes things go the other way. My ex and I barely spoke to one another when we divorced. We both remarried and our spouses kicked our rears to work together. We now refer to ourselves as a non-traditional intact family. We all go everywhere together. My ex now works at the same place as my DH and me. Stepmom is my best friend. We trade off all of our children so that we get "breaks" now and again to have date time. Our children are very happy with both of our families. Sometimes things work out, it just takes everyone to put their personal feelings aside for the children.

 

[Drake01]

No legal grounds to change custody. As for visitation issues, it sounds a like a pretty standard case when NCP's can't afford the child support they've been ordered. It's a bit like this: say you've borrowed money from friends and can't afford to pay them back right now. Even if you're 100 percent sure they aren't going to hound you, or even make an issue of it, you're going to feel uncomfortable around them and avoid them. You said you're ex makes a little more than minimum wage, in FL this year that's $7.21 an hour so we'll say $7.50. Before taxes that's $1,200 a month, and thus a yearly rate of $14,400. Florida's average cost of living is $27,500 and your ex is basically earning poverty level wages. The $400 monthly payment might be below guidelines, but it might as well be $40,000 a month. Morgan Spurlock's TV series had a very interesting feature on a month of living on minimum wage and the harsh realities of that. Let alone living on minimum wage with a court ordered child support. And I can tell you the horror stories, I recently had a patient as part of my chairty work who was a suicide attempt. The guy's teeth were falling out for malnutrition after about 3 years of living on nothing but two packets of Top Romian noodles a day. After child support, child care, and day care he could afford that and a cheap gym membership which he used to shower so he could maintain his job. It's pretty life changing to see someone rationing anything they think will keep from hospital meals because they know upon discharge they're going back to being hungry.
Legally, you are entitled to use every punitive measure allowed to try and collect as much money as you can get a court to order. And I'm sure there are more than a few here that would tell you to go for the jugular, the kid's Xbox needs outweigh dad's need for a clean place to live or good food to eat. What you have to decide is whether it's more important for the kid's to have dad in their lives, or for you to have the money.

 

[Monarch]

I would like to commend you on your thoughts regarding you ex. Sometimes things go the other way. My ex and I barely spoke to one another when we divorced. We both remarried and our spouses kicked our rears to work together. We now refer to ourselves as a non-traditional intact family. We all go everywhere together. My ex now works at the same place as my DH and me. Stepmom is my best friend. We trade off all of our children so that we get "breaks" now and again to have date time. Our children are very happy with both of our families. Sometimes things work out, it just takes everyone to put their personal feelings aside for the children.

Thanks Rushia -- actually your relationship with your ex reminds me a lot of one I saw in my later teen years with similar relationships with the ex and the step, joint celebrations, etc. It worked wonderfully for them and I have hopes that eventually my ex and I can come to some sort of similar resolution.

No legal grounds to change custody. As for visitation issues, it sounds a like a pretty standard case when NCP's can't afford the child support they've been ordered.

Visitation has nothing to do with his ability to afford child support. The two are in no way linked. If his visitation were tied to his child support he would have either found a way to pay it or wouldn't be seeing his children, the latter of which would be a shame as they love their father.

It's a bit like this: say you've borrowed money from friends and can't afford to pay them back right now. Even if you're 100 percent sure they aren't going to hound you, or even make an issue of it, you're going to feel uncomfortable around them and avoid them.

I have done everything in my power to give him time to adjust and find a way to be able to pay his agreed-upon child support. He had eight months from the time he signed the MSA, in which he agreed to that $400.00/ month, to find a way to be able to pay it.

You said you're ex makes a little more than minimum wage, in FL this year that's $7.21 an hour so we'll say $7.50. Before taxes that's $1,200 a month, and thus a yearly rate of $14,400. Florida's average cost of living is $27,500 and your ex is basically earning poverty level wages.

This isn't the child support thread, but as you have addressed this and got a bit personal in your last paragraph I am going to reply.

I'm aware of the math regarding poverty level. It's a huge reason why I've been as flexible as I have been regarding ways in which he can meet his agreed-upon obligation.

Unfortunately, I also feel like a patsy since throughout the course of our marriage his average income netted $3,500/ month. He is still capable of making at least 80% of that amount, yet he chooses to work at an $8.50/ hour job. So... to me, he is voluntarily underemployed, and is remaining that way because I sit on my duff and do nothing.

The $400 monthly payment might be below guidelines, but it might as well be $40,000 a month. Morgan Spurlock's TV series had a very interesting feature on a month of living on minimum wage and the harsh realities of that. Let alone living on minimum wage with a court ordered child support. And I can tell you the horror stories, I recently had a patient as part of my chairty work who was a suicide attempt. The guy's teeth were falling out for malnutrition after about 3 years of living on nothing but two packets of Top Romian noodles a day. After child support, child care, and day care he could afford that and a cheap gym membership which he used to shower so he could maintain his job. It's pretty life changing to see someone rationing anything they think will keep from hospital meals because they know upon discharge they're going back to being hungry.

This is certainly a sad picture you paint, and I feel for the man you're talking about. However, my children's father can afford to pay for cable TV, internet access, telephone, power to his residence (three bedrooms for one person), gas for his truck, purchases his cigarettes (those suckers are getting really expensive now) and does this on his $8.50/ hour wage.

He could pay something. I have been beyond reasonable, and yet I have seen zero effort on his part.

Legally, you are entitled to use every punitive measure allowed to try and collect as much money as you can get a court to order. And I'm sure there are more than a few here that would tell you to go for the jugular, the kid's Xbox needs outweigh dad's need for a clean place to live or good food to eat. What you have to decide is whether it's more important for the kid's to have dad in their lives, or for you to have the money.

Yes, I am permitted to use every punitive measure allowed to try to collect as much money as I can get a court to order. At this point it would be another $120 more than I am currently ordered and am not getting.

However, he agreed to pay $400.00/ month. That is all I'm asking. I realize you're likely speaking from some personal or anecdotal experience where all CP's are out to break the NCP's for every dime they possibly can, but after working in the family law field it is my considered belief that it is better to be flexible with child support (which, if you read my initial post you would know I have been) rather than to bludgeon your child's other parent with it.

That crack about the X-Box was uncalled for. I'm not out to take the man for every penny he has. I just want him to show a good faith effort.

And instead, he threatens me with a modification of custody when I have the nerve to even consider another relationship.

Do the math on that.

Thank you for the input you gave related to the actual topic at hand.