Trial outcome - please help

[killerzoey]

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

Please excuse my starting a new thread, but I really need input and I was afraid if I just replied to my old thread it wouldn't happen. Here is my old thread that is most relevant:

https://forum.freeadvice.com/child-support-98/meager-child-support-reason-move-487081.html


So we had our divorce/custody/child support/relocation trial (or so I thought), but when we got to the end the judge did not divorce us and said he thought this was just the temporary (pre-decree relief) evidentiary hearing. He admitted he shouldn't have thought this, but for some reason he did. (Is relocation EVER part of a temporary custody hearing?) Anyway, we have to now either settle on our own or go back to trial to finish. His lawyer filed a motion to set.

I am broke. That was the whole point of the "I need to relocate" thing. I had my lawyer file a motion to withdraw the other day and it was granted. I also requested more time while I try to find free legal help, which the judge indicated he would grant once he actually saw the motion to set, which he had not, though it was filed about a week ago I think. I've certainly known about it for a while.

Legal Aid has turned me down because my case is too complicated. I'm waiting to find out if Volunteer Legal Services will assist me, otherwise I'm going pro se. I don't think there's any chance we'll settle this. STBX has refused to even attend a settlement conference.

OK so the outcome was everything he wanted and nothing I wanted. I understand that temporary orders often become final orders and I am fairly well resigned to the horrible situation I am now in.

However I do have one more stab at this and I think there is so much that my lawyer did not make clear, though we had a whole day trial. Mostly the financial stuff. She focused on showing I am a great mom (which they stipulated to very early in the trial) and showing my family in California in a good light to help my relocation case. Soon we were out of time and all she had done to help me get decent child support was have my summaries of STBX's deposits over the past few years entered into evidence. She didn't argue why child support should be calculated the way we showed on the guidelines worksheet (I am not even sure that was entered into evidence) and she actually helped him I think by having him state his falsely low income on the stand w/o asking him to clarify why, then, there are deposits equal to at least three times that in his bank account every year. She didn't even write a position statement. We had a bunch of exhibits prepared but used almost NONE of them. His council had Exhibit A - a position statement and Exhibit B - child support guidelines justifying he only pays $200 a month for TWO children. The judge went with her recommendations entirely. No relocation/shared custody/$200 a month. He even agreed NOT to make the child support retroactive!!! I had originally requested it back in August! Just because she objected, he said ok, no.

Now, this judge is known for being inconsistent. There is a lot of general grumbling about his rulings, and attorneys never know which cases to take to trial because they really can't even guess how he will rule so that they can advise their clients. Though he is inconsistent he averages out being lenient toward underemployed dads, pro-dad in general, and anti-relocation.

So I'm not totally blaming my attorney, though I was very disappointed in what she ultimately did with all the stuff we had put together.

But now I have to try again to get this stuff under the judge's nose and hope to heck he cuts the kids a break and gives more than $200 a month.

I am going to have to move to the low income projects across the island. This is going to impact the kids' lives and frankly, STBX's as well, though he seems to think I'm going to drive all the way to his house and drop the kids off for him. I was at least counting on being able to stay in my home but with this amount of support there is no way. I have been trying to better my income situation for a while now incase I could not move and take this $45,000 job I have lined up in California, but now I am completely at a loss.

Is there any precedent I can cite where it is just plain not ok for a judge to order a parent to stay in a situation where they will be forced into poverty and possible homelessness despite their very best efforts? This just seems so incredibly wront. I have been looking and looking for work, have been doing as much freelance as I can, but blown through my savings not only in legal fees but by supporting the kids nearly on my own for an entire year since separation. Daycare/preschool...it was all on me and he refused to chip in. I thought at least I would recoup some of it with retroactive child support, or be able to move to where I could earn a living.

Since "trial" STBX has unilaterally opted to re-enroll our preschooler in preschool (I was waiting to have a conversation w/ him about preschool vs. kindergarten) and suddenly magically has money to pay for that. He is not willing to pay a few hundred more to me, though, so that I can keep us all in the same neighborhood and keep from disrupting . Says "This is what you get." When I asked him to sketch out a visitation schedule for after I move, he indicated the kids should just live with him "until I get my life together". Seems to think I could "blink and make money" and is totally out of touch with the way things are out there right now because he gets his money from mommy in the US mail. I am terrified where he is headed with this. The order was for shared physical custody and we were supposed to get with a parenting coordinator to work it out. We have almost zero history of working stuff out. I just don't like the sound of any of this.

Any input on this would be greatly appreciated.

 

[Ohiogal]

You think 45k in California WON"T put you in poverty? Especially when you would be paying to fly the children back and forth TO HI.

 

[killerzoey]

You think 45k in California WON"T put you in poverty? Especially when you would be paying to fly the children back and forth TO HI.

The offer was to waive child support to facilitate him flying back and forth, at least while the kids are young. He's from the very same area and his parents are there. He doesn't really have a job or anything that would keep him from visiting frequently. I had a pretty decent plan sketched out.

I know $45K is not a lot. But it's about $20K better than anything I could find here in Hawaii at the moment. And it includes benefits and it is just the starting wage. I'm telling you my situation here, with no industry here in my trade, is very very bad. There are degrees of poverty.

Daycare would be subsidized there and it is no longer subsidized here. That's another biggie.

How is it that he doesn't have to have a plan for if the kids stay? Doesn't he have to try his best? Isn't there something I can cite regarding that? Is it appropriate for a judge to accept STBX's claim that he's basically useless and therefore can't work, without asking for proof of some sort of disability?

 

[Ohiogal]

The offer was to waive child support to facilitate him flying back and forth, at least while the kids are young.

And he didn't accept it and therefore YOU should have been responsible for flying all of the children back and forth to their father. NOT expecting him to come to you and have to pay for extras and not have his children at HIS home. Child support waiving? Sorry but that is not usually going to be accepted because YOU could go back and request child support at any point that things changed. So he would end up paying child support AND paying for his transportation.

He's from the very same area and his parents are there. He doesn't really have a job or anything that would keep him from visiting frequently. I had a pretty decent plan sketched out.

Apparently not.

I know $45K is not a lot. But it's about $20K better than anything I could find here in Hawaii at the moment. And it includes benefits and it is just the starting wage. I'm telling you my situation here, with no industry here in my trade, is very very bad. There are degrees of poverty.

Yeah and there is only one father for your children. Not degrees of fathers you could find.

Daycare would be subsidized there and it is no longer subsidized here. That's another biggie.

Title XX is federal.

How is it that he doesn't have to have a plan for if the kids stay?

He has status quo, community and various other things going for the children remaining. YOU want the change and therefore YOU have the burden.

Doesn't he have to try his best? Isn't there something I can cite regarding that? Is it appropriate for a judge to accept STBX's claim that he's basically useless and therefore can't work, without asking for proof of some sort of disability?

yes it is appropriate because it is up to YOU to get the evidence that he can work and IS NOT disabled. Did you have that? The judge does NOT have to do your discovery.

 

[killerzoey]

And he didn't accept it and therefore YOU should have been responsible for flying all of the children back and forth to their father. NOT expecting him to come to you and have to pay for extras and not have his children at HIS home. Child support waiving? Sorry but that is not usually going to be accepted because YOU could go back and request child support at any point that things changed. So he would end up paying child support AND paying for his transportation.


Apparently not.



Yeah and there is only one father for your children. Not degrees of fathers you could find.



Title XX is federal.


He has status quo, community and various other things going for the children remaining. YOU want the change and therefore YOU have the burden.



yes it is appropriate because it is up to YOU to get the evidence that he can work and IS NOT disabled. Did you have that? The judge does NOT have to do your discovery.

Ohiogal - what is Title XX? All I know is that in California there are subsidy funds available and in Hawaii it has been all but stopped. I know because I had it and I've done everything I can do to keep it.

Regarding burden/status quo I used the model relocation act criteria to frame my proposal, making sure I addressed all of the ways that the relocation would enhance the children's lives and showing the ongoing relationship with Dad would be assured. I have heard that the judges on O'ahu consider Hawaii to be a state where both parents share the burden of proving their point of view (relocation is better or staying is better), but this judge put the burden squarely on me. I feel like if finances are this dire, Father should have to say more than "no" and then go surf some more.

Also, yes, I did prove that he is able bodied and can work. He himself testified to jobs he has done in the past, including one within the past few years. He has done lots of things, he just chooses not to. Formal discovery also produced years of bank statements showing between $48-52K a year in deposits.

So again, aren't parents required to do their best to provide for their kids based on their skills and work history? He has this money coming in from some source but he clearly does not work for it, and so in addition he has all this free time when he could work. It seems like a double error - his "gimme" income isn't being calculated for child support AND he is not being imputed income either. Isn't this an error on the judge's part? I personally think it is ethically wrong to set the bar so low for a father of a child, but isn't it also going against something in writing somewhere?

 

[Ohiogal]

Ohiogal - what is Title XX? All I know is that in California there are subsidy funds available and in Hawaii it has been all but stopped. I know because I had it and I've done everything I can do to keep it.

Google it.
Social Security Act 2001

Regarding burden/status quo I used the model relocation act criteria to frame my proposal, making sure I addressed all of the ways that the relocation would enhance the children's lives and showing the ongoing relationship with Dad would be assured. I have heard that the judges on O'ahu consider Hawaii to be a state where both parents share the burden of proving their point of view (relocation is better or staying is better), but this judge put the burden squarely on me.

The burden is on you. YOU filed the motion to relocate and hence the burden is on you to prove that relocation is in the best interest of the children.

I feel like if finances are this dire, Father should have to say more than "no" and then go surf some more.

Your bitterness is showing.

Also, yes, I did prove that he is able bodied and can work. He himself testified to jobs he has done in the past, including one within the past few years. He has done lots of things, he just chooses not to. Formal discovery also produced years of bank statements showing between $48-52K a year in deposits.

You think you proved that he is able bodied and can work. That doesn't mean you did proof. Saying it doesn't mean you proved it. And just because he has worked doesn't mean he can work now. You filed the motion for child support, you need to prove what his income is.

So again, aren't parents required to do their best to provide for their kids based on their skills and work history?

No.

He has this money coming in from some source but he clearly does not work for it, and so in addition he has all this free time when he could work. It seems like a double error - his "gimme" income isn't being calculated for child support AND he is not being imputed income either.

Did you prove his "gimme" income? Did you prove that he has all this money coming in? Did you prove that this was something consistent and constant?

Isn't this an error on the judge's part?

Not necessarily. If you didn't prove his "gimme" income then you didn't do your job.

I personally think it is ethically wrong to set the bar so low for a father of a child, but isn't it also going against something in writing somewhere?

The bar is NOT set so low for him. The "bar" is set so that allegations must be proven. You apparently did not prove your allegations in order to triumph. Quit blaming dad for your loss and start looking in the mirror. You file something then you need to prove it as the burden rests with you.

 

[killerzoey]

The Title XX thing didn't help so far... here, the child care subsidy was done through the state and then they said the funds dried up and all but cut off tons of people with nearly no notice. I really can't just march in there and tell them that they should have these funds...

I really was under the impression that parents had the obligation to do their best for their kids as far as making a living. The ex mediator who was a family court judge for years told me this.

And I understand that there are cases where a person has worked at a certain job but quits that job to (a) do nothing or (b) do something lesser paying and the judge will impute him or her that original income because theoretically they could still be doing that. To me that implies that we are supposed to do our best to provide for our kids, and it seems like if my STBX used to be able to do a certain job and has said as much, then the judge should consider that. The proof was STBX himself saying that he had this skill and used to use it to make X an hour. I suppose my lawyer should have taken that next step and said "and could you do this job now?"

Regarding proving the deposits, YES. I had years of bank statements showing the deposits consistently. The only thing that my attorney entered into evidence was my summary of these deposits with the yearly totals. I was confused why we didn't enter the statements themselves as well, but the judge did see the amounts per year and saw that they were consistently much higher than he has claimed.

Again, my original question (besides shouldn't we BOTH have to be trying our best to provide) is this:

Is it reasonable for a judge to make an order that stands a good chance of forcing one parent into desperate situation?

Remember we live on a very small island with a very bad job market. There is no industry here in which I work, and it is the only thing I've ever done. I have applied and applied for any job I remotely thought I could do, but they're all entry level and I haven't gotten an offer on even them. Even an entry level job would not improve my situation enough to solve this problem.

By ordering this very low child support and denying relocation, I am at the end of my tether and may end up in the shelter. I am the primary caretaker of the kids and one is quite young.

 

[CourtClerk]

What you ought to really do is find out just how long the wait list is to get subsidized child care in CA. I don't know if you watch the news lately, but CA is BROKE. We can't afford the kids who's care we're subsidizing now, we for sure can't afford any new kids. Children are being kicked off of Healthy Families. Families are being kicked off the welfare rolls (YEAH!!!), CA is not the pot of gold you think it is just because it may be doing a little better than some other state (barely).

 

[Ohiogal]

The Title XX thing didn't help so far... here, the child care subsidy was done through the state and then they said the funds dried up and all but cut off tons of people with nearly no notice. I really can't just march in there and tell them that they should have these funds...

I really was under the impression that parents had the obligation to do their best for their kids as far as making a living. The ex mediator who was a family court judge for years told me this.

And I understand that there are cases where a person has worked at a certain job but quits that job to (a) do nothing or (b) do something lesser paying and the judge will impute him or her that original income because theoretically they could still be doing that. To me that implies that we are supposed to do our best to provide for our kids, and it seems like if my STBX used to be able to do a certain job and has said as much, then the judge should consider that. The proof was STBX himself saying that he had this skill and used to use it to make X an hour. I suppose my lawyer should have taken that next step and said "and could you do this job now?"

Regarding proving the deposits, YES. I had years of bank statements showing the deposits consistently. The only thing that my attorney entered into evidence was my summary of these deposits with the yearly totals. I was confused why we didn't enter the statements themselves as well, but the judge did see the amounts per year and saw that they were consistently much higher than he has claimed.

Again, my original question (besides shouldn't we BOTH have to be trying our best to provide) is this:

Is it reasonable for a judge to make an order that stands a good chance of forcing one parent into desperate situation?

Remember we live on a very small island with a very bad job market. There is no industry here in which I work, and it is the only thing I've ever done. I have applied and applied for any job I remotely thought I could do, but they're all entry level and I haven't gotten an offer on even them. Even an entry level job would not improve my situation enough to solve this problem.

By ordering this very low child support and denying relocation, I am at the end of my tether and may end up in the shelter. I am the primary caretaker of the kids and one is quite young.

You didn't prove that he can work. You didn't prove that HE was receiving the income. Was the account it was going into one you had access to as well? If he is disabled then he will not be forced to work because if he is disabled then he can not work.

 

[stealth2]

I have to be honest - $45k in CA 10 years ago wasn't really a living wage. SO I doubt it is now.

 

[filledeplage]

There is an option for you, but you probably will not like it. If dad does not work much (so home more than you) and you are going to be in poverty if you do not move, why not just let dad have primary custody and then you move. You would have a better job, therefore providing better for them and not moving them into a bad area, and you could have the children for long visitation times in California. Obviously the judge does not feel it is in the best interest of the children to move, but that is not stopping you from moving.

 

[torimac]

I have to be honest - $45k in CA 10 years ago wasn't really a living wage. SO I doubt it is now.

I earn slightly more than that and it is not really a living wage. Especially with children. In order to be in a decent school district and afford rent, I have a long commute. The schools are broke, there is no subsidized daycare any more in our area because there is no more money. And next year will be worse as there is even more of a deficit in the budget. So, California is not the the answer if you are looking for subsidized anything.

 

[killerzoey]

There is an option for you, but you probably will not like it. If dad does not work much (so home more than you) and you are going to be in poverty if you do not move, why not just let dad have primary custody and then you move. You would have a better job, therefore providing better for them and not moving them into a bad area, and you could have the children for long visitation times in California. Obviously the judge does not feel it is in the best interest of the children to move, but that is not stopping you from moving.

Talk about traumatic for the kids... the shelter would be better than that option. Both are under school age, one is 1.5. There is no way I would do that to them.

 

[killerzoey]

I earn slightly more than that and it is not really a living wage. Especially with children. In order to be in a decent school district and afford rent, I have a long commute. The schools are broke, there is no subsidized daycare any more in our area because there is no more money. And next year will be worse as there is even more of a deficit in the budget. So, California is not the the answer if you are looking for subsidized anything.

I know CA is in a bad way. I do. But there is subsidized daycare in CA if you are already on TANF. I am about to be on TANF, hence if I move I will automatically receive subsidized daycare. I confirmed all of this about one month ago right before trial so I could be sure to be giving accurate info. In Hawaii, they cut the subsidies about 75% - 80%, so much as to force many people to quit working and go on assistance. I could do this too if I had family I could move in with but I do not.

There is a very big difference between a wage not quite being enough to live off of and total abject poverty. Things may be tight, but I can do it on $45K. I have family there. I cannot do it here. My freelance business cut in half in 2009 and suddenly I find myself with no viable means of support, living wage or otherwise.

I had no idea my business was going to take the hit it did in 2009 and now I just plain need support. I need to chart a new course if I'm going to stay in Hawaii. I've been putting irons in every fire I can find but I need something to shift asap. This $200/month / no arrears ruling has me not sleeping at night. I may be getting student loans and probably will going for my teaching credential soon, but these things take time. I just can't make it alone at the moment.

 

[killerzoey]

You didn't prove that he can work. You didn't prove that HE was receiving the income. Was the account it was going into one you had access to as well? If he is disabled then he will not be forced to work because if he is disabled then he can not work.

Ohiogal, this was ONLY his account. I had zero access to it ever. It is pretty cut and dried.

He is not disabled in any way.