Q & A: Can my fiance take his ex-wife back to modify their child support if income changes?

Q.  My fiancé has joint custody of his three children with his ex-wife.  Even though they share the children 50/50, he is paying almost $900 a month for financial child support.  His ex-wife makes three times the amount of income he does.  Can he take the issue back to court to have the child support refigured?   Could she quite possibly be paying HIM child support due to her high income?

A.  When your fiancé and his ex-wife got a divorce, chances are, these arrangements were made in their divorce decree and the child support arrangements were taken care of then as well.  The most important thing to consider is what they were both making at the time of the divorce.  During a divorce, the income of each parent is put together to figure out who pays whom, how much each parent pays, and all of this is relative to the income and lifestyle that the children and other parent enjoyed while being married.

If it’s been a few years and incomes have changed, your fiancé can definitely take the issue back to court for what’s called “child support modification.”  At this court date, the judge will consider how much each parent makes NOW and what is in the best interest of the children.  If the payments that your fiancé is making to his ex-wife are causing undue hardships and straining his financial situation, chances are his child support payments will be lowered, based on his ex-wife’s current income alone.  In fact, with 50/50 custody, she may end up paying him, depending on how the court determines the child support in your state.

Q & A: Can my boyfriend get custody of his child since her mom is in jail?

Q. My boyfriend’s ex has custody of his daughter, and she was recently put in jail for selling drugs to an undercover cop.  While she’s in jail, child protection services has stepped in and has given temporary custody of his daughter to his ex’s brother.  After she leaves jail, CPS states that since his daughter was not around when the drug transaction was occurring, his daughter would be returning to her mom for custody.  I’m assuming now is the time for my boyfriend to step in and get custody of his daughter, but how would he go about this now that CPS still feels that she will be a “fit parent” after she leaves jail?

A.  CPS will almost always attempt to get the kids back with the mother regardless of what she has done.  This is the prejudice that exists in the system against men and for mothers.  It is important that your boyfriend file a Petition seeking full custody and primary care of the child, either by filing a Petition To Establish Parentage, or a Petition for Modification to the existing orders.

Time is of the essence.  Move quickly.  CPS will do something called a dependency hearing in which they will take control of the child because the mother cannot and get that child with another family member or, hopefully, with the father.  It’s important to move quickly as the state can place the child in foster care as well.  I’m certain you don’t want this!

Q. My recent boyfriend’s ex-girlfriend is pregnant with his child.  He wants to have custody of the baby, since she doesn’t want to keep the baby and is planning on putting the baby up for adoption.  Can she do this without my boyfriend’s consent?  What are his legal rights when it comes to the unborn child and proving it is his baby for custody?

A.  If she is planning on putting the baby up for adoption after it is born, then she may try keeping his name off the birth certificate, stating the father as unknown, in order to do that.  What needs to be done first is a paternity test.  Either an in-utero paternity test, or a paternity test immediately after the baby is born, is necessary in order to get his name on the baby’s birth certificate. I would also suggest filing a Petition for Paternity immediately to get “on the record” the fact that your boyfriend is claiming he is probably is the Father.

Once his name is on the birth certificate, he has a say.  If she has written to him in a letter or email or even a phone text that she wants to give up the baby, make sure you make copies and use it in court—she may go to court saying that she never wanted to put the baby up for adoption, only to be hit with her own written evidence stating she did.  Even if she decided to, say, keep the baby but give over legal rights to her parents, the court would still favor on the side of keeping the baby with a biological parent, so your boyfriend would have a wonderful set-up for getting full custody of his child!

Q & A: My boyfriend's ex-wife is not following the court ordered visitation schedule

Q.   My boyfriend has an ex-wife with whom he has a son with, and she lives about two hours away.  It is court-ordered that my boyfriend get his son every summer.  This puts a bind on him, however, since his job would force him to have to pay for daycare during the day while he’s working.  I work nights, and can watch his son during the day so that he doesn’t have to worry about making arrangements for daycare.  His ex-wife, however, refuses to let me watch her son, and would rather her son stay with her parents instead, who live in town with her and basically keeps my boyfriend from having any time with his son at all.  Does she have a right to pick who can watch her child even though it’s during the child’s father’s time with them?

A.  Unfortunately, it sounds as though the ex is being highly unreasonable.  If she has a real concern with her son being with you, that’s one thing, but she may just be doing it out of spite, anger, or resentment against your boyfriend.  You’re “the other woman” and maybe she is afraid that her son might get attached to you.  It might be best to sit and talk reasonably with her to find out her true concerns.

However, I think the biggest concern here is the violation of the court ordered agreement.  If they have it court-ordered that he gets his son during the summer, then she is basically neglecting to stick with that court order and could be considered in violation if she is trying to keep their son where she lives just because she doesn’t want you caring for her child out of spite.  If he were to get daycare for his son, would she insist on “approving” of them too?  If not, then it’s a situation of spite.  If so, then maybe she is overly concerned as to who is caring for her son outside of her home.

Q & A: Fiance's ex-girlfriend gave up rights of daughter to her parents, can he get his daughter back?

Q. My fiancé’s ex-girlfriend gave birth to his daughter while he was not around, and so his name is not on her birth certificate.  His ex-girlfriend gave over legal custody of his daughter to her parents, and they are now the legal guardians.  My fiancé wants custody (joint, full, whatever he can get) of his daughter.  Without his name on the birth certificate, what are his rights and how can he get his daughter back?

A.  It’s important to know that regardless of the situation with the grandparents, the courts will typically side with a biological parent taking care of the child.  This being said, the first step that needs to be taken in this situation would be to have your fiancé prove that he is indeed the father, regardless of what is stated on the birth certificate.  This can be done with a simple paternity test, which your fiancé could go to court and request legally.

Once paternity is established, then he would go to court against the grandparents.  In a situation like this, he could probably go for full since it sounds as though his ex-girlfriend doesn’t want much to do with the child already and/or feels like an incompetent or irresponsible parent already (maybe she’s young?).  In addition, since he’s your fiancé, he may fare better in court once you were married, as he could fight that the child would be entering a two-parent situation, a stable household and a two-income family.