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My son is in the military with a home address of NC but resides in TX. He married a girl that was pregnant but he is not the biological father. They are getting divorced and she refuses to share custody but wants to get child support. She has been awarded $1100 month temporary child support. He can't afford to pay this amount. She has admitted in the court that this is not his child. What can he do?
He needs to hire an attorney to present a new child support amount to the judge. There is something wrong here as that amount is extremely high. And even if the child is not his biologically, the fact that it was born while he was married to her is meaningless as any child born during a marriage becomes the husband's child. There needs to be a child support modification entered here based on his earnings and her earnings. And the custody matter can be heard at the same time before the Judge.
Well initially he wanted to continue his relationship with the child so he was asking for shared custody. An initial child support of $860 was discussed but the mother stated that she receives subsidy for housing and childcare and that the $860 would make her lose the subsidy, so the judge determined that he should pay the difference. This was in August. We recently found out that she has moved out of state with her new boyfriend and was living in SC and was not paying rent or child care at the time of the hearing.
My son's lawyer is another story. She asked for #3500 for the divorce, which he paid up front. I don't think she was doing a good job representing him. The last hearing was in August and she told him he didn't need to be there. He stayed in Texas and got a letter a week later telling him that he had failed to appear in court and today he got a letter form her requesting to withdraw from the case. We don't know what to do.
Which state has jurisdiction?
Thus much at least is clear he cannot deny he must pay child support.Quote:
Originally Posted by veryfrustrated
Custody and child support are different things.There are two main types of custody-legal and physical custody. If your son does not have shared/ joint/ physical custody, he may ask for visitation.Quote:
Originally Posted by veryfrustrated
Generally the judges have broad discretion to decide what child support payments must be paid.Firstly they have to determine what amount must be paid under the state's Child support percentage guidelines , and after that they have discretion to increase that support under s.c. "Needs of the Child".
However,sounds to me as contempt of court.Quote:
Originally Posted by veryfrustrated
North Carolina
He can also bring up to the court that she moved without notifying him.
We need to know the locales here. Also the age of the child. Its possible he may be able to rescind his paternity. There are certainly possibilities here if we have more info we can suggest them.
The case is being seen in NC. He currently resides in TX. The child is 4 years old and when I said she doesn't want to share custody, I mean she has hidden the child and refuses him visitation. She wants the money but does not want him to have a relationship with the child, which is why he is requesting to be released from this obligation.
Please use the Answer box below to post follow-up. Don't Ask a new question which starts a separate thread. I've merged the threads for you.
Hiding a child is parental kidnapping. Did he ask for visitation as part of the original divorce? Was any granted?
Yes, and it was not granted
His first BIG mistake.Quote:
Originally Posted by veryfrustrated
Thus he must pay child support without right to see the child.Quote:
Originally Posted by veryfrustrated
Ordinarily the noncustodial parent is entitled to reasonable visitation rights with a minor child except in extraordinary situations, such as when the noncustodial parent has a history of abusing or neglecting the child. Visitation can be flexible and unstructured, assuming the parties can get along and agree on the times and terms of visitation, or it can be highly structured and rigid, with certain days and times set out with great specificity.
No custody order is ever "permanent." However, once a parent is awarded custody in a court order, the judge can change the custody order only if there is a substantial change in circumstances since the time of entry of that prior order. Usually it must be proven that the change has a direct and adverse effect on the child.
At this point and seeing all the controversy this situation has brought, I think it's best for him to rescind paternity. The child is still small and probably won't be hurt as musch. I think that an ongoing battle between the 2 can only make things worse for the child.
He needs a better lawyer.
Impossible under the theories of laches and equitable estoppel.Quote:
Originally Posted by veryfrustrated
However his only chance under the NC laws is to find the biological father and to beg him to step on the picture.
49‑12.1. Legitimation when mother married.
(a) The putative father of a child born to a mother who is married to another man may file a special proceeding to legitimate the child. The procedures shall be the same as those specified by G.S. 49‑10, except that the spouse of the mother of the child shall be a necessary party to the proceeding and shall be properly served. A guardian ad litem shall be appointed to represent the child if the child is a minor.
(b) The presumption of legitimacy can be overcome by clear and convincing evidence.
(c) The parties may enter a consent order with the approval of the clerk of superior court. The order entered by the clerk shall find the facts and declare the proper person the father of the child and may change the surname of the child.
(d) The effect of legitimation under this section shall be the same as provided by G.S. 49‑11.
(e) A certified copy of the order of legitimation under this section shall be sent by the clerk of superior court under his official seal to the State Registrar of Vital Statistics who shall make a new birth certificate bearing the full name of the father of the child and, if ordered by the clerk, changing the surname of the child. (1991, c. 667, s. 2; 1991 (Reg. Sess. 1992), c. 1030, s. 15; 1997‑433, s. 4.9; 1998‑17, s. 1.)
I think so too. I don't really think she's even made an effort to represent him effectively. Now she's trying to withdraw from the case and they're not even divorced yet. So now he's minus $3500 he paid his lawyer and minus the $1100 he's been paying since July; he's almost broke and can't even see the child.
Ooops... then he MAY put the paternity question. Get a new lawyer ASAP!Quote:
Originally Posted by veryfrustrated
Thanks. That's what I guess it all boils down to. It's just that I don't know how far he's been damaged in court with his feeble representation and if he will be able to have someone new step into the case to try to mitigate some of the damage. Any ideas?
It will depend on the judge.
A temorary support orders are issued in almost all cases including child support to step children when divorce is pending.
Does anyone know of any Men's Advocates groups?
There are several, just do a search for Fathers rights or check out this search
fathers rights groups - Bing
Why was visitation denied? As GV said this is highly unusual? Have you been to court with him or you just relying on what he has told you?
If he gets a new lawyer (and since he's military, he should be able to get some help from the military law group) the judge may allow for presentation of new motions.
He can't afford not to do this now, since it will be costing him for the rest of his life.
He has had 1 court hearing that I arrived late to. That is when he was ordered to pay the $1100. He tried to object that amount (He already pays child support for twin boys, he was willing to pay $500)and that was denied. He says that's when he objected paternity and requested a DNA test. He says that he was not granted visitation because he requested the DNA Test.
He went to JAG in Tx and they told him they couldn't do anything because the case is in NC. They told him they can't provide him legal counsel because although his lawyer has resigned she is still his lawyer and that would be a conflict. He has a hearing on 10/17, that he doesn't have a clue what it's about; his lawyer won't return his calls (never has) and the court tells him that he needs to talk to his lawyer.
This whole situation just doesn't seem right.
Judges in South Carolina don't simply make up numbers. Child support is by formula, and here it is: North Carolina Child Support Calculator - AllLaw.com
His lawyer hasn't resigned until the Court PERMITS her to resign (from what I am reading).
Who is the mother of the twins? This same woman?
I very much doubt the Court dismissed his objections OR awarded child support because he requested DNA. It may very well be that he is the legal father of the child so DNA at this point does not matter.
I am also rather shocked (and this is more along the lines of personal advice) that he would walk out of the life of a four year old rather than argue with the mother over money and visitation. I have stepchildren and stepGRANDchildren. The grandchildren know me as their grandmother. I can't imagine walking away. As I said - nothing legal, strictly personal advice.
Judy, although the lawyer has not resigned she will not respond to his messages or provide him with any information. So bottom line he has no representation. The case is not in SC but NC. The twins are from a previous relationship. The judge would not accept to take the child support he pays to them in consideration and he was placed in a position to choose between being able to continue supporting his biological children or supporting this child. We love the child dearly and this has not been an easy decision to make. The mother refuses to let us see the child and had moved out of state (unknown to the court). The court has imposed the temporary child support but awarded no visitation or shared custody. The child's mother does not want us involved in the child's life. They've been separated since 2008 and we have not been allowed to see the child in the past year. My son has come to the decision that if she does not want for him to act as the father (which he was willing to do and offered to continue paying the $500.00 a month he has been paying since 2008) then why should he continue to support this child?
The site I posted is NC - my mistake. I posted the right site with the wrong name. Whoops and double whoops.
I understand what you are saying, I truly do, but in the eyes of the legal system visitation/custody and support are two different things. One does not hinge on the other.
Your son goes to Court and tells the Court EXACTLY what you've told us - the Attorney wants to resign, will not turn his file over to him so he can represent himself (or find someone else to represent him) and he needs assigned counsel or a break with legal fees.
Did he request visitation and/or custody and the Court denied his request or did she ask for child support and he didn't file for visitation?
You must be heartsick - hard to see your children go through this, hard to realize this grandchild may be out of your life forever.
I'd take a look at the calculator - something is not right. The Court could very well be confused.
That part makes sense to me. As soon as he made noises about denying paternity I can understand the court denying visitation.Quote:
Originally Posted by veryfrustrated
As for the attorney, call her and leave a message saying if he doesn't return his calls, he will report her to the local Bar association and take action to recover what he paid.
But the court will not let him relinquish his rights. He accepted the child knowing it probably wasn't his. So he needs to follow through.
Use the calculator that Judy linked to, Figure out what he should be paying and take that into court.
Hello Judy and welcome back!Quote:
Originally Posted by JudyKayTee
You are right - child support should be calculated according the state's child support guidelines, but I have to add that it was not ordered $ 1,100 as child support but $ 1,100 temporary child support./while divorce is pending/. That makes difference.
Another thing here:
In North Carolina, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances.
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