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Can he get more custody and CS question..

Stepmom26745294's picture

So here's the story in a nutshell; (long) 

ex wife cheated, DH was in a bad place and pretty much gave her whatever she wanted. They wrote up a separation agreement and when they divorced it was filed with the court so there's a legal doc but it's not a court order. 
he has 20% but wanted more time but she convinced him since he works full time and she was a SAHM that they should be with her mostly but that he could see the kids whenever he wanted. He wanted 50% but he coward to her. CS was based off of her making zero money as well. 
fast forward: she has given him his measly 20% however, she tries to insert herself and/or schedule numerous sports so she has access to the kids. She also refuses to let him have any extra time at all and says no all the time. She involves the kids in every conversation for instance she will ask them if they want to do all these sports (without dad's agreement which she is suppose to do per their agreement) or go skiing (during DH's time) with her and she gets them all excited then she tells DH "the boys want to do this or that" then if he says no because we can't fit the boys doing 6 sports between them in a single weekend or he wants to be with the boys during his scheduled time she tells the boys "sorry... dad said no. I'm so sorry" then when he didn't take them to the things she scheduled (for instance we had youngest's birtgday party planned for Sat afternoon and he had a basketball game that dad didn't agree to basketball sign ups) she screamed at him in front of the kids then told him his lack of support is an embarrassment to their family. (DH did agree to the kids doing one sport per season and he's also coaching for that sport. He supports the boys in everything, but he feels it's overload and she is doing it to hurt his time with the kids) it's been particularly bad lately because he has told her numerous times that he supports what they agreed to but he will not pay fir or take them to things that she unilaterally made a decision on for his time. Her argument is it's their time and the kids should be able to do absolutely whatever they want to do on their time. His argument is it's not healthy to do more then one sport per season and doing so could cause injury (we have got several professional opinions about this) They also are so over scheduled that they do not have time to do their responsibilities here like homework and caring for their pets. Nor do they have time to just hang out with friends, relax or spend time together as a family (which is exactly what she wants) the other things is she's making a lot of money now. Like a lot. She got into real estate and making a killing. We know this because I also have my real estate license and it's very easy to see what other agents have sold. However, she still expects his full child support which he pays every month and has never ever missed a payment.  He also agreed to pay 100% of everything on top of that like extra curricular activities and medical. She has been paying for those things though (but we still pay medical insurance. She's been paying co fees) and has not asked for reimbursement. That might be how she is covering herself for that. There's a lot more but that's the gist of it. So, he's in the position to be able to take on more custody. She will definitely refuse and she will definitely tell the boys he's trying to take them away from their mother. That's what she does. Her mother is just as bad and the two of them do very petty things to him constantly and it's just terrible. So, we know we obviously have to go to court but is there anything he can do about the child support now? Also, because they don't have a court order, what does he need to do to get CS recalculated? 
As far as custody, he's worried she will paint this picture of him being an unsupportive dad not taking them to every activity they want to do even though he does take them to the agreed upon ones and is fully engaged in those even coaches.  She has beat him down so much he's actually scared the judge will see things her way and she will get full legal custody. She's made all educational and medical decisions because she was the SAHM and he trusted her to do so. I told him he has shot himself in the foot with many things but what does he need to do now? What are next steps?? Thanks!

STaround's picture

But that may result in the kids being kicked off the team.   DH has to decide what he wants.  Kids may say one thing to one parent, and another thing to the other.  Kid may tell dad, I want to stay home, and tell mom, I want to be on team.  Kid may tell mom, the pets are a pain in the neck, and may tell dad I love the pets.   Kid may tell dad, other activities are fun, kid may tell mom, other activities are babyish. 

I doubt he will get signficantly more time, have you run through a state calculator estimating her income?   Where I live NCPs rarely get CS, but every state is different.  

Stepmom26745294's picture

He wants 50% he does not want kids taken from mom. He does not want child support. He wants to recalculate as her income has changed substantially. He wants fairness. She wants control. We are trying to find balance for the boys. 

tog redux's picture

Well - give up on the idea of fairness, because Family Court is anything BUT fair. However, he has the worst possible deal he could get right now, so it's hard to imagine things going downhill. 

Petronella's picture

It's very unlikely he'll get 50%. The court will see no reason to award that. 

Does her income even matter for the child support he pays? Here it wouldn't. 

tog redux's picture

It depends on the state. Many do feel 50/50 is appropriate if the father is local and able to do it.  

Panther1's picture

I would take a multi-step approach.

I would file for a "Hearing to show cause" on the premise that BM is over scheduling the extra curriculars and they are impacting his parenting time.  My BF had kinda the opposite happen to him.  He was refusing to take the kids to the extra-curricular activities and the BM was getting angry about his refusals.  So she filed a motion for Extracurriculars to supersedes his parenting time - Judge heard it and said no - kids social life is not more important than dads time.  So your BF should not take the kids to anything that he doesn't want.

I would wait until May 1st of 2020 and I would file a motion to Modify Child Support and the premise would be that the SAHM status has changed and she is now employed and making an income, Ask for tax returns to be looked at and at a minimum full time minimum wage should be imputed.  Bear in mind that your BF's income will also be looked at and reviewed, so if his income has gone up substantially it could actually back-fire.

 

Stepmom26745294's picture

Thx! We are married but his income has not gone up. It's only been a few years. So, is there a reason to wait for May 2020? 

Panther1's picture

The reason to wait is so she will have her Calendar year 2019 tax return filed with the IRS.

BethAnne's picture

Child support and custody issues are normally dealt with separately through the courts. Your husband should be able to apply to the courts to have the child support reassessed due to either time (usually every 3 years) or change of circumstances (BM is now earning money). Talk to a lawyer as to how to go about this process or go to the court house and ask them what forms need to be filled in to start it. My understanding is that child support assessments are fairly standard and should go though court a lot quicker than custody disagreements but of course BM could cause issues if she wanted. If I were you I would use a lawyer if I could afford it to make sure everything is done properly. 

tog redux's picture

OP, you keep asking this very same question - he needs to consult an attorney, and then decide whether he's willing to put up with BM escalating her craziness if he goes to court. 

Stepmom26745294's picture

We are going on Monday. We are trying to strategize and think of everything beforehand. 

Petronella's picture

Are you the ones where the parents don't have a CO at all yet - just some kind of written document that may or may not have any legal enforceability?

Your husband needs a lawyer, very very badly. 

Look to see what CS he should be paying according to his income. Your state may or may not be one of the states that takes the CP's income into consideration. 

If the law in your state is that CS would go down once your husband gets his kids 40% of the time or whatever - then I guarantee that BM will never let that happen. 

Stepmom26745294's picture

We have an appointment on Monday. Just trying to strategize and have everything together for our meeting. 

Panther1's picture

I disagree with most of the other posters.  These simple 1 subject hearings do not need a lawyer involved. Just do a little online research and pull forms and see where it goes.  The forms are fairly easy to fill out and actually lead you into the format that they want.

Stepmom26745294's picture

That's what else I was asking. Are there things we can take care of ourselves without a lawyer because we have a lot to change so anything simple and straightforward without an attorney is helpful. I'm asking though, since they do not have a court order, does that change the process of anything. 

tog redux's picture

Don't try to go without an attorney, that's terrible advice. At least here, they make it all so complicated that it's hard to file the forms and figure out what to put on there, etc. In theory you are able to go without one, but it's not as easy as the PP makes it sound.

Consult with an attorney. As you get better versed in how Family Court works, you may be able to do some without one, but if he goes in without one, BM's attorney will eat him alive. With his own money that BM used for the retainer. 

Stepmom26745294's picture

Oh we definitely plan on getting an attorney. I'm just talking about it there is a straightforward like do you just fine to change child support and have it calculated or is there something specific an attorney is needed for that. 

tog redux's picture

Here, Child support can be done on your own without an attorney, they don't want to make that too hard for people to file for. But if you change the entire CO, they will likely address CS then as well, based on the changes in the schedule.  At least that's how it happened for DH.

Rags's picture

A CS review and revision can usually be done without an attorney.  Change custody % is different and I would not go pro se.

Panther1's picture

My BF and I have won every hearing that has ever been filed.  We have won with a mediator also. All pro se ( alone )

As my advice mentioned.  Do a single issue hearing at a time.  I believe their first step should be to get their agreement turned into a Court Order.  I would use an attorney for that step.

The 2nd step about a GUBM using extracurriculars is a very sinple concept.  No attorney needed.

So I believe that doing a little research, sitting in on a day of hearings at the family courthouse is time well spent and will show how your judge works.

And lastly, remodification of CS based on a Change in Circumstance is usually just a calculation and the use of an attorney is not really needed.  The key is to keeping it simple and not mixing 3 different issues together.

tog redux's picture

Yes, yes, I know.  Sorry, it's not easy for most people to go pro se. Don't assume your state is the same as everyone else's (for example, no mediation in our state at all). 

I'll pat you on the back and give the same advice - get an attorney. 

simifan's picture

 

This BM is definitely High Conflict. They need an attorney. 

 

Goodluck's picture

Most are high conflict.

The more conflict the longer the churn will be. Meaning years and years in court.

 

 

tog redux's picture

Please provide a source for your claim. Not all high conflict BMs are unable to control their emotions. The narcissistic ones are quite good at putting on a show of being MOTY. 

Plus, what? Your BF was alienated from his kids even going pro se. So what are you talking about? He never really "won" - he lost his kids. 

STaround's picture

Cam up with in NC, which seems to be your state, unless the NCP has 123 days, no matter what the CP earns, the CP cannot get charged CS.   You might want to reseach this.   I think it is going to be tought to move from 20% to 33%.   If this comes off as as him wanting more time to get $$$, it will not go well.

The court will gell you that there is no need to limit what the kids do on his time, he can do that without a court order.

Stepmom26745294's picture

No. He won't come across that way. He was extremely generous in their divorce. He gave her a lot and it would have been fine if she agree to him seeing the kids more. If it came down to it, he would agree to pay extra child support if he could have them more. Again, it's about what is fair. If she got a job making a substantially more money. Naturally child support sound bd adjusted. If he wants more time and is perfectly capable. There is no reason he shouldn't get more time. The agreement weighs heavy in her favor and she's taking advantage. This is not about money or taking kids away from mom. Dad very much supports the kids relationship with their mom. He just wants the same in return. 
judt to be clear. DH does NOT want child support. He is paying about $1000 more a month per out calculation in what she most likely is making. He would like that adjusted. She is suppose to report a substantial income change from what I have been told. I don't know if that is true or not but why should he being paying more? 

STaround's picture

1. No, in many states, what the custordial parents earns does not matter.    Other PP have tried to tell you that. 

2.  In many courts, if the kids are doing fine, the court is hesitant to change.   Do you live in the same school district as the mother?  How would you handle if not? 

Stepmom26745294's picture

1) It does in this state. There is a calculation and both parents income is used 

2) yes we do 

also they have joint physical and legal. 

Stepmom26745294's picture

Her mother helps her all the time. Not sure her flexibility. 
From what I hear, that's a very old fashion and courts are leaning towards 50/50 whenever possible. This is a very pro 50/50 county we live in. But, we will find out more when we see attorney. 
they also frown upon a parent who is not supportive of the other parent's relationship with the child and we are an astounding amount of evidence that she talks badly about him, lies about things so he can't see the kids, screaming at him in front of the kids ect... not sure that is viewed as the kids doing ok. 
 

Stepmom26745294's picture

He has no problem driving then around. It has nothing to do with that. He's a great dad. Yes, he will do whatever driving that is needed as he always has. He does not want to take anything away from the kids. But, he feels they need balance as well. 

NoWireCoatHangarsEVER's picture

T.  They did their own divorce.  She was a SAHM when they spllit.  She retained full custody.  It's basically what you wrote exactly.  So yes she took him to court to try and get even more than a $1000 a month and lost.  Her child support went down to $800 for two and then $400 for one when the oldest aged out.  Courts are more favorable towards 50/50 these days.  

Stepmom26745294's picture

She doesn't have full custody. They have joint. But yeah, I think most states go towards 50/50 now. Especially when both parents are capable. From what I hear, they feel the maximum time with both parents equally is best for the child when possible and we are both very capable. 

Goodluck's picture

STEPMOM######[

Joint legal means both mom and dad are supposed to agree on Education, medical, ACTIVITIES and religion. Key word supposed.

I do not have to look at your agreement to figure out that BM has majority of residental custody hense WHY she has child support.

1. does mom and dad split physical residency of the kids, 1week with dad, next week with mom, ---or does dh have eow IF he is lucky.

They may have joint legal but what matter is WHO has more overnight...My pick is mom does.

 

 

Stepmom26745294's picture

Yes correct! I was just explaining to the other poster she doesn't have FULL custody. He has EOWE. 
Yeah she doesn't tell him anything. SS just told me he has had 5 cavities and DH knew nothing about it. 

simifan's picture

 

Here's the thing you keep missing. No one here, in fact no one can make BM act like a rational human being.She is a HCBM. Not even a judge, whether SO gets a court order in his favor or not, can make the BM act rationally or put her kids before her hatred of your SO. DH growing a set of balls and facing off with BM is not going to fix your problem, a court order is not going to fix your problem. You'll see it over and over again, a HCBM is a HCBM and they make things difficult for their ex's, anyone involved with them including their own children. 

 

 

tog redux's picture

Yes, this is very true. The only thing that gave us any peace was BM totally alienating SS so we didn't have to deal with her at all anymore. Of course it was devastating for DH, but the peace and quiet let us heal and thrive. 

Stepmom26745294's picture

So true!! I couldn't agree with you more. We want to at least minimize where we can ya know? She has sooooo much free reign right now. 

tog redux's picture

Except - for some HCBMs, being "controlled" by a CO makes them worse, not better. And when they figure out that they can violate it with no consequences from court, there is nothing to stop them.

I'd suggest that DH have his attorney ask BM if she's willing to change the agreement before he files in court. 

Stepmom26745294's picture

I also agree with this because the more DH doesn't do as he's told by her, the worse she gets. 

Goodluck's picture

I would like to sum this up.

Normal range adult/parents see the value of their ex IN the lives of their kids. They know kids need their mom and dad.

No amount of money you spend OR don't spend in court will change bm. DH has to stick UP for his rights to manage his time with his kids in his own way.

BM does NOT have authority to micro manage the kids time when they are with their dad. PERIOD.

 

 Stay out of the court room when your husband has a hearing. IF you must go with him, sit out in the lobby or in the car.

PS edit to add....who cares if bm reports dad is only going to court for $$ reasons. Fight back and tell bm it IS,  UNNATURAL for a child to not be present in both parents lives.