Father's World

Joseph Cordell,J.D.

Past Questions

Current Questions and Answers

NOTE: Information contained in this site is intended to help fathers who are involved in the divorce process. It should not, however, be construed as legal advice. For personal legal advice, please consult your attorney.

Will a divorce affect getting custody of my son (from a previous relationship)?

Q: My wife and I have decided to divorce. We have been married for 2 yrs...The only problem is I am in the middle of getting full custody from my son from a previous relationship (not my wife's child). Family courts see my household as a stable environment for my son because I have portrayed my soon to be ex-wife as providing a loving home which has now turn into a home from hell. If we go through with the divorce will it be hard for me to obtain full custody of my son? Or should I convince her to stay a while until I try and get full custody of my son and then we go through with the divorce...Any suggestions?
Asked by Len

A: Certainly a court can consider your home environment in determining what is in the child's best interests as far as custody. The problem with convincing your current wife to stay married until you get custody is that (1) your wife may have to testify and, if asked, testify truthfully to what is going on at home, and (2) you may have to do the same. Perjury, obviously, is a bad idea. If it comes out later that you hid relevant facts from the court, that could be considered in changing custody later. I think you need to think carefully about how you present this to the court, and also consider what is best for your child. Beyond that, I cannot give specific advice as this site is for general commentary, not legal advice.

Can mom be made to pay child support?

Q: Can women be made to pay child support? My live in boyfriend has a child from a previous marriage. He has sole custody of this child and his ex was ordered by the courts to pay child support. Since the agreement (over three years) she has not paid child support. She claims that she buys the child clothing so she does not have to pay child support. Does he have to get an attorney or go to an enforcement agency to get this resolved? She owes over 12 thousand dollars. Is there an easier way to get the judge to hold her in contempt? I make a pretty good income and she claims that she does not have to pay because of our income.
Asked by Beth in Georgia

A: Certainly women can be made to pay child support. The general rule is that items purchased directly for the children (like the clothes) cannot be considered in determining whether a support obligation has been met. So these clothes purchases are likely irrelevant in determining how much she owes in back support. Yes, your boyfriend must take some sort of enforcement action to get her to pay. Usually state enforcement agencies are a good first step because they will represent the person owed support (usually, but not always, the woman) for free and have enforcement capabilities. You could hire a lawyer and bring a motion for contempt, but if you are short on money, try the state agency. In most states, so far as I know, your income is not considered in setting the support obligation for the mother because you are not related to this child and have no support obligation. The only exception is that occasionally the fact that your income may reduce your boyfriend's expenses can be considered. However, even if it were considered, changes in either your boyfriend's income or the mother's income would only affect FUTURE support. The mother is on the hook for all support from the date of the order until the court changes the support order.

Child support and paternity question...

Q: My ex-girlfriend and I have a 18 month old boy and she's now pressing child support on me. I saw the boy twice since he was born, and now have no idea where they reside. My question is, without an official court order, can my wages be garnished? I've been denied a paternity test because of a document stating if I agree to put my name on the birth certificate, I could not appeal the case. What can I do?
Asked by James in Texas

A: If there is a court order for support, or an administrative support order, then your wages can be garnished. The general requirement under the Uniform Parentage Act is that signing the birth certificate is not enough, but rather you must sign an affidavit at the hospital admitting paternity. (The exact rule varies from state to state.) If, at the hospital, you signed a document which establishes paternity under your state's version of the UPA, then you are correct, you cannot get a paternity test later as paternity would be conclusively established by the document you signed. You can file a court action seeking visitation with the child, but there isn't a whole lot you can do about child support, considering that you do seem to admit the child is yours.

Rotating custody schedule and child support

Q: Can you give me some information on how rotating custody works. Is there any child support involved in this type of custody?
Asked by Pam in Ft. Meyers, Florida

A: I assume you are talking about the situation where the parents have roughly equal amounts of custody time and it is shared with a rotating schedule, which means that each parent gets the children for a period of time (usually a week or so) and then the other parent gets the child for the same amount of time, and so on and so on. Even with a 50/50 time split such as this, there can and frequently still is payment of child support. This is because child support is based on the standard of living the child would have had if the divorce had not occurred. If one parent makes quite a bit more than the other, then typically that parent would end up paying support even in a 50/50 custody split, to maintain the child's standard of living when with the parent who earns less.

Sibling visitation

Q: My step children, ages 14 and 15 and who have moved out of my house (3 years and 6 months ago respectfully) after approx 10 years of living with me and my wife, are filing suit for visitation with my natural son, age 7. My wife and I, the mother of all three, are against any visitation. Is there any case law relating to forcing natural parents to give visitation to minor half siblings which I can review?
Asked by Charles in Virginia

A: As a Missouri attorney I can't tell you anything about Virginia case law, but I can give you a few ideas.
First of all, many states (like mine) do have laws allowing for courts to order visitation with unrelated third parties, or relatives who are not the parents. However, in my experience courts tend to be very reluctant to allow visitation with unrelated third parties, and only slightly less reluctant to order visitation with other relatives. (Grandparents are an exception; most if not all states have separate grandparent visitation statutes, but that only proves my point. If the general visitation statute allows visitation to be granted to relatives, why have a separate grandparent's statute unless they are to be treated differently from other relatives?) The reason why courts don't frequently grant third party visitation is that the wishes of the parents are considered paramount, to be overridden only in extraordinary circumstances. That having been said, there are some facts missing from your question. I assume that the step children are now living with their father? Does this mean that your wife, their mother, does not want to see the older children at all? Or does she want to see them, but keep them away from the 7 year old? A court, in making a decision, will look at all the facts. If it appears that you and your wife are not acting in the children's best interests by keeping these siblings (half-siblings) separated, the court may be more likely to grant visitation (although I still think it's unlikely). Courts do frown on splitting siblings in custody cases. However, if you have good reasons for your wishes, the court is not likely to override them.

As far as finding case law, I suggest you first find your state's visitation/custody statute (we have some links on this site that can help you locate it.) Then, go to your friendly neighborhood law library (at the courthouse or a local law school), and look up the statute in West's annotated statutes for your state. Following the statute will be a list of case summaries (called "headnotes") sorted by category. There should be a category in there listing cases that have dealt with third party visitation. This is assuming, of course, that Virginia is a state that allows courts to order such visitation.

Refusal to visit...

Q: My ex-wife has bashed my character in front of my two daughters for the past 5 years now, constantly putting me down, keeping me from picking them up whenever she gets angry with me, or whenever she doesn't get her way concerning one argument or another between us concerning the girls. They are now 16 and 12. She has full custody and has remarried. Her new husband has also spoke badly of me in front of the children, saying that I don't deserve them among other comments about my character of which I will not go into here, but assure you would be considered harsh even in an adult gathering. Last year my youngest daughter called to say she was no longer going to come see me until I got professional help for my "Borderline Personality Disorder" problem and until such time she wanted nothing to do with me! She's 12 years old, and that certainly doesn't sound like something a 12 year old would come up with on their own. Even I had to look it up to see what it was.

Needless to say I have not seen her in 10 months, and she insists she does not want to see me and that it is her decision and not her mothers. I feel that with her being around such a hostile environment towards me constantly has persuaded her into thinking this way, but I don't want to force her to do something she insists she doesn't want to do. My question is, should I seek counsel to have my visitation restored with her? It has never been taken away, and my ex is clearly in contempt, but I am sure she will claim that my daughter does not want to visit me. I don't want to cause her any harm emotionally, but yet I miss her dearly and it is tearing me apart to be away from her like this and to be accused of such horrible things by my ex which are totally unfounded and untrue. My daughter went to a therapist for a few months but the therapist refused to speak with me because she said it would violate her privacy with my daughter. Is that true? I am her father! Please, any information or advice would be greatly appreciated.
Asked by Scott in Murfreesboro, Tennessee

A: I think that, based on your description, you'd be able to present a good case for a modification and/or contempt, but it's going to be expensive. You will have to engage in extensive discovery to prove your case, and will need expert witnesses. You will need to have the daughter interviewed and establish evidence that she did not come up with her attitudes on her own. It is not up to a 12 year old (or any child) whether or not to comply with a visitation order. If your ex does not like the order, she can file to modify it, but if she does not, she is in contempt.

Property foreclosure

Q: My ex was awarded the house in our divorce agreement but she has since not made the payments and the mortgage company is going to foreclose(I called them). If I showed an interest in the property to either sell or do something with the house my ex could 'pull' me into court and exploit this I believe since the court decided I no longer have an interest in this property, but, the mortgage company holds me liable at the same time. What can I do if anything?
Asked by "Retyso" in Missouri

A: This is an unfortunately common situation. A court can award a mortgaged property to one party (and frequently does), but cannot order a bank to take the other party's name off the mortgage. If the property was awarded to your ex-wife, then it's hers and you have no property interest in it. In Missouri this is so even if you never signed a quit-claim deed, so long as she filed a certified copy of the judgment with the recorder of deeds for the county in which the house is located (I have verified that this is so with the St. Louis County Recorder of Deeds a few years ago.) Therefore I think you cannot sell the house. You should check your divorce decree and look for a "hold harmless" clause. This is a part of the divorce decree that says that if you are held responsible for the mortgage, you can look to your ex to repay you, and is routinely contained in orders of this type. Not that she likely can actually do so, but this gives you a "hook" to get her to sell the house and pay off the mortgage. To save your credit rating you may want to consider making at least enough of a payment to save the house from foreclosure, then making demand on your ex to repay you under the "hold harmless" clause, then hauling her into court on a contempt motion when she fails to do so. That might provide her with some incentive to sell the house and get out from under this situation.

Considering divorce (newborn in the picture)

Q: I have only been married 1.5 years and we have a newborn baby (1-mos). My life is miserable in marriage because her parents are/have been very meddling and it has caused tremendous stress (classic I hate my mother in law). I am lost and would like to go on our separate ways but I do not want to lose my relationship with my new daughter. If my wife leaves me she will move in with her parents ands take my child with her. What can I do to stop her from doing this/taking the child? What do I do to make sure that this goes my way. Are there a list of questions to ask an attorney that will tell me if they are the best? Any help would be appreciated? I am very confused right now!
Asked by a father in NY

A: While I don't want to sound too much like a salesman, given how general your question is I think that you are a prime candidate to purchase our book "Civil War: A Dad's Guide to Custody". If you are seeking an overview of information about the situation you describe, this book will be very helpful. Also, our audio tape series "Dad's Law School" will give you much information about the legal process.

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Joseph Cordell, J.D. founded Cordell & Cordell in 1990 after a brief stint with a major law firm. Originally a general practice firm focusing its attention on domestic relations matters, Cordell & Cordell has evolved into a firm practicing exclusively domestic relations law, with an overwhelming emphasis on fathers' rights. For more information you can visit http://www.dadsdivorce.com/ or if you have a question that you would like answered http://www.dadsdivorce.com/phorum/list.php?f=16&collapse=0

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