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.

While many clients think the trial resolves everything, most lawyers know that is not the case.  If the mother of your children was difficult before the trial, the trial is not going to make her into a different person.   She will still be difficult, you will have disputes regarding the children and you will need to resolve them somehow.

The court has the power to enforce its orders or the agreement of the parties.  So the court can order a mother to allow visitation or can order a father to pay child support.  However, the court will only do this if one of the parties asks it to do so by filing a petition.  The other party will then have an opportunity to respond and a hearing to present their side to the judge.

It is always better to resolve disputes yourselves if possible.   If you have a settlement agreement, you can include a provision that disputes will be submitted to mediation before taking the other party back to court.

You can also include a Parenting Coordinator in an agreement.  This would be someone that the parties can take their disputes to and let them make a decision.  This is less costly and time consuming than litigation.

If you cannot resolve your dispute through one of these methods, then you must go back to court and ask the judge to decide.  In some cases, it may be like trying your case all over again.  In addition to resolving post-trial disputes, the court has the power to modify legal custody, physical custody, timesharing and child support after the trial, if circumstances change and the modification would be in the best interests of the child.

Clark Rockefeller made headlines when he took his seven year old daughter in Boston on July 27 during his first supervised visitation with a social worker.  Rockefeller lost custody last December when the mother relocated to London for work.

Rockefeller turned himself in in Baltimore and now faces felony charges in Boston.

Some websites portray Rockefeller as a hero of fathers’ rights and are using his case to draw attention to problems with the family court system.

Dahlia Lithwick, writing at Slate.Com, recognizes these problems:

“Many good fathers will be downgraded from full-time dads to alternating-weekend-carpool dads. They will be asked to pay at least one-third of their salaries in child support for that privilege. Simple rules of modern life make it likely that an ex-wife will someday decide that a job or new husband demands a move to a faraway state. At which point the alternating-weekend-carpool dad is again demoted—to a Thanksgivings-if-you’re-lucky dad.”

But, she notes, that “lionizing Clark Rockefeller or other violent, lawless fathers will not promote fathers’ rights or fix the family-court system.”

She’s right.  The system is imperfect.  But until we come up with something better, it’s the best we’ve got.  As Rockefeller found out, taking the law into your own hands will not work.

“In 85% of divorces, fathers get just two weekends a month and a couple of hours during the week.” — Mike McCormick of the American Coalition for Fathers and Children.

With the divorce and custody trial of Christie Brinkley vs. Peter Cook in the news, the Intelligence Report at Parade Magazine is asking if divorce courts are anti-dad and is taking a survey on this question:

“Should divorced dads get equal time with their kids?”

Parade notes that up to half of fathers lose contact with their kids after a divorce even with a trend toward shared custody over the past twenty years.

Proportional time is a new legal trend according to Jennifer Rosato of Philadelphia’s Drexel University School of Law, where “the custody decision is based on the time dads spent with their children before the divorce, rather than presuming that dads have, and want, limited involvement with their kids.”

But, says McCormick, “Courts want a check first and a relationship second.”

Martin and Margaret Nolan got married in 1962 and adopted three children.

When they divorced in 1974 in the District of Columbia, Martin agreed to pay $750 a month for child support.

Things got confusing when Martin made some payments to the schools and sent some money directly to the children. Margaret filed suit for $28,085 in back child support.

Martin claimed the parties had modified their agreement orally and by conduct (even though the agreement said it could only be modified in writing) and that he didn’t owe any back child support. Margaret denied she had agreed to waive child support.

The trial court decided that, while the agreement could have been modified orally or by conduct, the burden was on Martin to prove it, and he had failed to convince the judge of this. The Court of Appeals agreed. Nolan v. Nolan, 568 A.2d 479 (1990).

The lesson to learn from the Nolan case is this. If your ex-spouse agrees that you may pay child support directly to the school or the children instead of her, get it in writing. And if there is a court order for child support, ask the court to amend the order as well.