Daughter’s interest in living with her mother & How to modify custody and support

July 16, 2009 by admin
Filed under Ask the Lawyer

Question:

My daughter (15) has repeatedly expressed an interest in living with her mother 100 miles away. Her mother is open to it. I received custody because her mother was going through some pretty serious depression. Since our divorce my ex has really improved. I would miss my daughter, but I respect her need to have her mom. My gut tells me to sit down with my daughter and tell her how I feel about it and let her go with an open-door policy on my end.

My question is whether or not I am setting myself up for child support which I really can’t afford to pay, problems with the court, and the danger that I might be seen as abandoning my child. Everything seems fine with mom now, but she has a history of not thinking clearly. I’d hate to have my daughter miss the opportunity of getting to know her mom but want to be careful. Any advice as to how to proceed?

Answer:

Proceed cautiously.
If your daughter moves in with her mother, you will be obligated to provide financial support to your ex-wife. This may not happen immediately, but it will happen. Child support is your daughter’s right and most states will not allow parents to unilaterally waive support without cause. Even if you and your ex-wife were to agree that support would not be exchanged in consideration of the custody change, your ex-wife would be well within her legal rights to come back and petition the Court to modify that order at a later date.

If your ex-wife lives in a different state or county, you could be facing some procedural nightmares in the future. Depending on various factors, including the time your daughter lives with her mother and whether or not you choose to move, your case could be transferred to a different court. The new court will not have the “history” of your case and may have less favorable laws with respect to child support and parenting time.

I do not believe you will be perceived as “abandoning” your child, however, I wonder if you have considered all of the ways your own relationship with your daughter will change if she lives 100 miles away? Clearly you have been a stable and loving father to your daughter. A fifteen year old girl is not always the best judge of her own best interests, especially when she is desperate to receive the love and acceptance of her mother. I presume you have many rules in your home regarding things like clothing, music, food and curfews. I also presume that while your daughter may voice her opinion about these restrictions, you are ultimately the one who makes the decision. Custody is no different; you are her father and are in the best position to continue making decisions about your daughter’s well-being.

I will leave you with this thought: supporting a relationship between your daughter and her mother is not an “all or nothing” proposition. Before you consider such a monumental change in your daughter’s life (changing schools, removing her from her community, moving her from her peer group), consider the comparatively small but important step of increasing your ex-wife’s involvement in your daughter’s life. Invite her to extracurricular events and conferences. Keep her apprised of your daughter’s doctor’s and dentist’s appointments. Encourage her to be a part of decision-making when it comes to extra-curricular activities, birthday parties and house rules. Perhaps you can experiment with longer periods of parenting time between your daughter and her mother. The bottom line: move slowly.Question category: Legal Strategy

Question:

I have been divorced about a year. In my decree it states that anything we don’t agree upon will be settled with mediation. I have tried to get her into mediation without receiving a reply. I don’t want to go back to court, but I would like to modify the current situation as there has been a substantial change of circumstances. I moved within two blocks of the children, and I now live in their school district and I have had them over and above the set “visitation.” So I need to modify the custody (seeking 50/50) and also need to modify the child support (not applicable any longer) but how do I do that without getting back into the court? I am not fearful of the court, just don’t like the animosity and expense that comes with it.

Answer:

You should file a motion with the Court requesting a modification of your current schedule based upon a change of circumstances. You may also ask the Court for an order directing you and your ex-spouse to attend mediation prior to the hearing. You will need to ask the Court to set your motion for a hearing if mediation is not successful.

I should also note that even if you and your ex-spouse agree upon a parenting time change, you may not agree upon a change in child support. Although having a 50/50 or “shared” custody arrangement may entitle you to an adjustment of your support, shared custody may not entitle you to stop paying child support all together.

Although the two issues of parenting time and child support are intended to be handled separately by the Courts, the issues are often intertwined during negotiations between the parties. The parent seeking an increase in parenting time may be accused of doing so to reduce his/her share of child support and the party objecting to an increase in the other parent’s parenting time may be accused of doing so to avoid a reduction in his/her support. The underlying financial motivation of each party (either real or perceived) can sometimes complicate what should otherwise be a straightforward conversation about your children’s schedule. Be prepared.

Submit your questions to sdladvice@singledadlife.com

Jill Best is an attorney with Cordell & Cordell, PC, a family-law firm focusing on men. She writes for DadsDivorce.com