Jon Gosselin has filed a Complaint in Custody and for Child Support against Kate Gosselin.  Jon has said that Kate is spending too much time on Dancing with the Stars and that she is neglecting the kids.  The Complaint doesn’t mention that but says she is abusing the discretion she was given by the arbitrator to set the times when Jon can be with the children.  Jon is asking that custody of the children be changed to him and that the court review the child support awarded by the arbitrator.

Hector and Maxine Joy Sallaberry of Florida had been married for 17 years and had one son.   Hector owned a copy machine repair business.  Maxine had almost no income and Hector supported the family.  Family expenses were about $5,000 a month.

In their divorce, Maxine hired a forensic accountant who reviewed Hector’s business records and testified that he made $6,752 a month.  Hector countered that he could only bill about one hour a day on the average at $95 an hour, and that his income was $3,400 a month.

The trial judge found that Hector was voluntarily underemployed.  He imputed income to Hector for child support and alimony on the following basis.  He said Hector could bill 20 hours a week which would result in about $95,000 a year in revenues.  Then he subtracted $15,000 for expenses leaving about $80,000 in profits which matched what the accountant said Hector earned.

On appeal, the Florida appeals court reversed, saying that (1) the judge’s finding that Hector could bill 20 hours a week was speculation, not evidence; (2) the accountant failed to subtract business expenses from his number; and (3) the judge could not impute income solely on past ability to pay because that might not reflect current earning power.

Sallaberry v. Sallaberry, et al., No. 4D08-2124 (Florida District Court of Appeal, Fourth District, February 17, 2010)

In 2004, Travis Deon Henry had reason to be happy, having just signed a 25 million dollar contract with the NFL’s Denver Broncos.  He would soon need the money because Jameshia L. Beacham of Georgia filed a paternity suit against him.

And that’s not all.  Henry had eight other children in multiple states and child support orders for almost all of them.  Although Henry made almost $50,000 a month, he was behind on his temporary child support payments to Beacham when the matter came on for trial.  So the Judge ordered him to place $250,000 in trust to secure the payments.  The trust would be returned to Henry after his child support obligation was satisfied.

Henry appealed the legality of the trust fund requirement but the appeals court found that the trial court had the authority to fashion such a remedy in these circumstances.    Henry v. Beacham, A09A1129 (2009).

Vickie Duckworth and Darren Kamp got married in 1983, and had three children together.  Then Darren decided to have a vasectomy in 1987.  Vickie became pregnant again in 1992.  Although Darren knew about her affair, he decided to treat the child as his own.

The couple stayed together until 1998 and filed for divorce in 1999.  In their separation agreement and divorce, Darren stated that he was the father of all four children.

In 2005, Vickie filed a motion to modify child support because Darren was making more money.  Darren had had enough.  In his response he said that he was not the biological father of the fourth child, and asked for a DNA test.  The court granted his request, and the DNA test came back negative,  Since Darren was not the biological father, the Court said he was not required to pay child support.

The Maryland Court of Appeals reversed, and sent the case back to the trial court for further proceedings, saying the judge must first consider whether or not a DNA test was in the best interests of the child.  And those considerations should take into account the length of time that Darren had maintained a father-child relationship.

Kamp v. Dep’t of Human Services, Maryland Court of Appeals, September 21, 2009

Related Articles:

Non-Biological Dad Still Has to Pay Child Support

Update on Paternity and DNA

The number of motions by dads to decrease child their child support payments are on the rise as a result of the problem economy.  The rate of unemployment for men is 9.8% compared to 7.5% for women.  And there are more noncustodial dads than moms out there.

Motions to modify child support have tripled in the last one and a half years in Prince George’s County, Maryland.  It used to be most motions were from custodial parents seeking an increase.  Now most motions are from noncustodial parents seeking a decrease.

Unless the parties are able to work it out for themselves, and file a consent order changing alimony, the court will have to determine whether it is in the best interest of the child to reduce child support.  There will be a hearing and it is not enough to say the economy is bad and I lost my job.  The judge will want to know what actions you are taking to do something about it.

Read more at this article by AP Reporter, Megan K. Scott.

by Nelson Garcia

Mary Connole married Ernst DeGroot in 1984 in the District of Columbia.  They had two children.  Difficulties arose between them and they decided to separate in 1997 and they were divorced in 1999.  Neither party asked for child support, but Ernst paid $600 a month in child support to Mary until 2004 when the oldest child turned 19.  Then he unilaterally reduced the payments to $300 a month and Mary filed a motion in DC to award child support.

The trouble was that no one still lived in DC.  Mary and the children now lived in Maryland and Ernest now lived in Virginia.  The trial court denied the motion finding it had no jurisdiction over the subject matter.

The DC Court of Appeals reversed.  First it looked at prior cases in the District of Columbia holding the court does not lose jurisdiction to modify child support when the parties move to other jurisdictions.  The court then turned to the Uniform Interstate Family Support Act (UIFSA) to see if it limited the court’s powers.  The court noted that UIFSA did say that a court loses its powers to modify its child support orders when the parties leave the jurisdiction.

However, in this case, Mary was asking the court to establish an initial child support order in a divorce it had already decided.  The court could find nothing in UIFSA that prevented the DC court from doing just that.

In 1986, Essie Lee Morrison of Georgia had a child.  She told her boyfriend, Frank Hatley, now 50 years old, that the child was his.  The two never married and broke up shortly afterwards.

Morrison applied for public support for the child when the child was two years old.   Georgia then collected child support payments from Hatley for the next thirteen years.

In 2000, Hatley learned that the child might not be his. A DNA test confirmed it.  The Court released him from any future child support.  But he signed an agreement with the Office of Child Support Services to pay over $16,000 in past due child support.

Hatley continued to pay that debt down to about $10,000, but fell behind in 2006 when he lost his job.  He was jailed for six months.  He resumed paying.  Then he became unemployed again and lost his home.  The court put him back in jail in June of 2008.

Finally, the court released him from jail last month finding that he was indigent and should not be jailed for failing to make the child support payments.  The debt has been canceled but the State has yet to release his driver’s license and income tax refunds.

More on this story at CNN.com

Pasqualino Cornelio of Toronto, Canada, married Anciolina Cornelio and they had twins.  They separated in 1998 and Pasqualino began making child support payments.

Recently, Anciolina sought to reduce his time with the twins and increase his child support.  Pasqualino retaliated by have a DNA test.  Guess what.  He was not the biological father of the twins.

Pasqualino claimed he was the victim of misrepresentation and fraud.  He demanded termination of child support and reimbursement of the tens of thousands of dollars he has paid over the years.

But there was no other father to step in and take his place.  “Ms. Cornelio denies knowledge of who the twins’ biological father might be,” the Judge said. “In fact, she claims to have no memory of an extramarital affair preceding their birth, which she attributes to the medication she was taking at the time.”

So, the court decided that because Pasqualino “was the only father the twins knew during the course of the marriage,” he could neither stop paying child support nor recover past child support.

“While the failure of Ms. Cornelio to disclose to her husband the fact that she had an extramarital affair and that the twins might not be his biological children may well have been a moral wrong against Mr. Cornelio, it is a wrong that does not afford him a legal remedy to recover child support he has already paid, and that does not permit him to stop paying child support,” wrote Judge Katherine van Rensburg on Dec. 22, 2008.

Source:  National Post

Fathers will ask me from time to time how they can monitor their child support payments to make sure the money will be used for the children’s expenses and not the mother’s expenses.  Some of the money would have to be allocated to common expenses like rent, utilities, food and transportation.  Others would be direct expenses like clothing.  It seems to me that this would be an accounting nightmare so I recommend against it.

Some fathers want me to raise the issue with the court.  I tell them about the equitable doctrine of “De minimis non curat lex” (”The law does not bother with trifles”).  Judges are barely keeping up with the cases they have, and simply don’t have the time or inclination to monitor monthly expenditures in a child support case.

The court will take action if a child is being neglected, typically by changing custody.  But short of that, mothers do not have to report how child support is spent.  For a mother’s perspective on this, see this article by Christina Rowe.

This post was contributed by Kelly Kilpatrick, who writes on the subject of a police detective. She invites your feedback at kellykilpatrick24 at gmail dot com.

If you’ve seen someone go through a bitter divorce and the even uglier child custody battle, you’ll know that the courts are not generally favorable towards the father, especially when it comes to securing custody of the child. Some fathers are happy to wash their hands of the responsibility of child rearing, but others are left devastated when their spouse gets sole custody and they’re asked to pay child support and alimony too in some cases.

Most judges are predisposed to awarding custody to the mother, simply because she is the one who’s had more time with the child, especially if he or she is pretty young. When you’re on the verge of a divorce, it’s hard to be rational and think before you act. But when it comes to your children and the fact that a court is going to tell you how you’re going to be allowed to relate to them for the rest of your life, you must put your emotions aside and use your head alone to save yourself a whole lot of trouble.

The first thing to do is to make your divorce amicable; I know it’s the hardest thing to do, part on good terms with someone you don’t want to live the rest of your life with. But if you share children, it’s the mature thing to do. This has a host of advantages, especially to you as the father. You don’t say things you may regret later, things that if overheard by your youngster, could end up harming your reputation in his or her eyes. Remember, your child is likely to be influenced by your spouse, so it’s best to remain on cordial terms with her.

A friendly divorce also allows you both to save a ton of money – you can bypass the lawyers altogether, seek joint custody of your children and reach a mutually satisfactory amount for child support and alimony. Better still, you remain on good terms so that your children feel secure even though you’re divorced.

I know I’m painting a pretty rosy picture where your spouse agrees to an amicable divorce and joint custody, but it’s worth a try, for yourself and your children. Rather than assume that your spouse would never go along with your suggestions, and that she is out to hurt you, be gracious enough to give in once in a while. After all, you were in love with the woman once, and by being the bigger person, you save yourself an acrimonious divorce proceeding and a lot of money in the process. Your spouse may also feel the need to relent once she sees how reasonable you’re being, so go ahead, give it a try. You’ve nothing to lose (other than what you will even if you don’t try) if it doesn’t work out, and everything to gain if it does.