Need advice

jpearce327 · August 2013

The quick backstory is that we have no CO for custody (You guys recommended it several weeks ago, but we have low funds at the moment due to our wedding and lack of child support). He does have a CO for Child support, however.

We currently have no set schedule. We tried EOW, but it wasn't working with our schedules. So now it is just kind of whatever.

He just text me and demanded Sunday for a "family thing." He hasn't paid child support since May, and while I was away on my honeymoon, my mom saw him put DS into an unsafe carseat.

Do I legally HAVE to let him have Sunday? With no court order?

I am fine when he asks for him and we negotiate a time and place based on availabilities, but him just demanded him really rubs me the wrong way. We also have a family friends birthday party to go to Sunday.

Hopeforthebest · August 2013

NO you don't have to, but he doesn't have to give him back next time either if there is no CO.

fellesferie · August 2013

I'm trying not to be judge-y or make assumptions, but I don't understand having a wedding and a honeymoon but not being able to afford a CO. The CO may seem like a waste, but it's a document that protects your child.

Legally there's nothing to say. Neither one of you has more rights than the other. Just like Hope said, you don't legally have to hand him over. Your ex doesn't legally have to bring him back.

You can't keep score against your ex, and then use the list as a reason to withhold the child. If your mom saw him put the child into an unsafe carseat, what did she do in that moment? Did she photograph or video? Did she notify the police? CPS? And there is no connection whatsoever between child support and parenting time.

jpearce327 · August 2013

Thank you ladies.

I completely understand the assumption about the marriage/honeymoon. Going into this summer/spring when we decided to get married, everything was fine with BD. My lawyer suggested that we not make a move until he made one first. I followed his advice.

Littlejen22 · August 2013

You only decided this spring summer to get married and are already married?

jpearce327 · August 2013

Yes. We got engaged in March and married in July.

Hopeforthebest · August 2013

jpearce327 said:

Thank you ladies.

I completely understand the assumption about the marriage/honeymoon. Going into this summer/spring when we decided to get married, everything was fine with BD. My lawyer suggested that we not make a move until he made one first. I followed his advice.

No offense but that to me is terrible advice. Any lawyer worth his salt wouldn't allow a child to change hands with no custody paperwork KNOWING your ex h's first MOVE could have been to keep the kid and file for full custody.

jpearce327 · August 2013

Hopeforthebest said:

jpearce327 said:

Thank you ladies.

I completely understand the assumption about the marriage/honeymoon. Going into this summer/spring when we decided to get married, everything was fine with BD. My lawyer suggested that we not make a move until he made one first. I followed his advice.

No offense but that to me is terrible advice. Any lawyer worth his salt wouldn't allow a child to change hands with no custody paperwork KNOWING your ex h's first MOVE could have been to keep the kid and file for full custody.

I'm not far from agreeing with you. My next move is to either ask him to go ahead and draw one up or get a new lawyer.

mccall0113 · August 2013

Have you thought of mediation first? I hear it's much more affordable. You need something in writing ASAP.

twister22 · August 2013

Whoever is the one to file for a CO typically has the upper hand.

I would suggest drafting up a CO - maybe the typical CP/NCP CO for your area (i.e. BD gets EOWE and a dinner visit during the week if it's not his weekend.) Once you are happy with your drafted CO, file for a CO. Notify BD that you filed, but you would like to mediate things and come to an agreement outside of court. You and BD can sit down and look over the draft and make any changes you want. You guys can agree that you'll both continue to be flexible with one another, but want to have a CO so all involved are protected. Once you two have a CO drafted to your liking, both of you need to sign off on it and have each attorney sign off on it and then submit it to the court.

In regards to this Sunday - how far in advance did he demand Sunday? A week? Just this morning? If it were me I would probably say "I'm sorry, we already have plans this Sunday. Is there another time you would like to take DS for your next visit?"

Also, no CS doesn't mean no visitation. BD was 10K in arrears is 2010, which for him means to passport will be issued to him, his tax returns go straight to me, and an extra 10% of the current CS amount is garnished from his paychecks. I have never heard of any court/judge equating no CS with no visitation. Just as not taking visitation doesn't mean you don't have to pay CS.

Nineoceans · August 2013

My Dh and BM had no CO and one day Bm picked SS from the last day of school and never returned him the entire summer. If she was smart she would have moved away but she's not fortunately.

Get a CO. Absolutely. Most important money you will ever spend.

CFjo2010 · August 2013

I disagree with the PP who says whoever files first has the upperhand. That's completely untrue.

Whoever has documented proof of the exercised visitation schedule has the upperhand. Whoever has maintained primary physical custody (status quo) has the upperhand. It doesn't matter who files first. Filing first just means your name goes first on the paperwork.

OP, you need a CO and you need one like, LAST YEAR. Any lawyer who tells you to hold off on getting a custody CO put in place is not a decent lawyer. I can see a lawyer saying to hold off on modifying a current CO, but never hold off on getting the initial CO filed. That's the stupidest thing ever. You have been handing over your son with zero guarantee of getting him back.

+just+j+ · August 2013

Get a better lawyer, and get a CO drawn up. Pronto.

riabiron · August 2013

wendilea said:

You don't legally have to have him, but he also doesn't legally have to return him when he does get a visit, either. With no CO, both parents have equal rights to keeping the child until a CO is drawn up.

This is not always true. In many states, if they were not married when the child was born and he has not gone to court for visitation, the mother had all legal and physical rights to the child. The father has none.

dmndsr4eva · August 2013

I got a court order the day I moved out. Because what the others said is true in my state. If there is no court order then there is no way to determine which parent should have custody at any point in time.

Being that you have no court order I would try to appease him until you can get one in place. It doesn't sound like he sees your child very often so I think giving up the one day would be advisable.

dmndsr4eva · August 2013

riabiron said:

wendilea said:

You don't legally have to have him, but he also doesn't legally have to return him when he does get a visit, either. With no CO, both parents have equal rights to keeping the child until a CO is drawn up.

This is not always true. In many states, if they were not married when the child was born and he has not gone to court for visitation, the mother had all legal and physical rights to the child. The father has none.

In my state it is true that until an agreement is determined in mediation or court both parents have equal rights to the child whether they were married or not.

dmndsr4eva · August 2013

Honestly after everything I've been through and all the money I paid to my attorney it really is true that being kind and respectful to the other parent probably would get you a long way and save you a lot of money battling things out in court. Seems like you've done a great job of it so far with negotiating with him on your own.

dmndsr4eva · August 2013

Additionally my state requires a timesharing scheduled to be in place after the child support is filed for. As soon as I filed for child support the court automatically set up a mediation for determining timesharing.

dmndsr4eva · August 2013

jobalchak said:

I disagree with the PP who says whoever files first has the upperhand. That's completely untrue.

Whoever has documented proof of the exercised visitation schedule has the upperhand. Whoever has maintained primary physical custody (status quo) has the upperhand. It doesn't matter who files first. Filing first just means your name goes first on the paperwork.

OP, you need a CO and you need one like, LAST YEAR. Any lawyer who tells you to hold off on getting a custody CO put in place is not a decent lawyer. I can see a lawyer saying to hold off on modifying a current CO, but never hold off on getting the initial CO filed. That's the stupidest thing ever. You have been handing over your son with zero guarantee of getting him back.

Whoever files first has custody of the child until the court can hear the case which can be months. Even emergency hearings in my state can take 6 or more weeks.

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