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.

Q: Modification to see son more My husband has been divorced for 6 years. His ex-wife has just remarried and things are worse than ever. My husband wants to see his 9 year old son more. His son would like the same. His ex-wife refuses to do this. She has said no to both son and father. Should he bother taking his ex-wife to court?
Asked by Judi in New Haven, CT

A: I can't tell you if he should "bother", and you don't give me a lot of facts to base a comment on, but I can tell you that generally a 9-year-old is old enough to express an opinion that at least can be considered by the court. The older the child is, though, the more weight his opinion will carry. Given that she has remarried and that the child wishes more time with his father, both facts which serve to establish a change in circumstances since entry of the original order, certainly your husband could make a valid case to modify the existing custody order. He would have to show that it's in the child's best interests to spend more time with him in order to prevail. It's up to the judge ultimately, so all you can do is try

Q: I have a job where I generally work 10 hour days. We have flex time, the doors are open from 6:30am to 6:00pm. It take me 30-35 minutes to get to work, and 35-45 minutes to get home. I can work on Saturdays, usually 6:30am to 12:30pm. This is the schedule when we are on 56 hours, if we have no O.T., then we work 8 hour days. The OT is pretty consistent and I have averaged roughly 50-52 hours a week the last 2 years; so my question is: With the kind of hours I work, What do you think would be my odds in getting Joint Physical Custody if not Full Primary Custody?
Asked by Dennis in Michigan

A: I never give odds because (1) I don't know all the facts, and even if I did, (2) judges are way too unpredictable. In addition you don't mention the hours the mother works. A lot would depend on that; if she works the same hours you do, obviously you have a better shot than if she's a stay at home mom. In general, however, I would suggest you worry less about the hours themselves, and more about presenting to the Court a reasonable plan for how you intend to parent the child effectively given the hours that you work. That is the most direct approach for addressing this issue.

Q: I'm a 41 yr. old female who is pregnant with another man's child and my husband of 24 years said I can't divorce him until after my child is born, is this correct?
Asked by Charlene

A: Although this depends on your particular state's law, I can tell you that in my state (Missouri), although the statute does not specifically forbid granting a dissolution of marriage while the wife is pregnant, most judges in my experience won't do it, but will hold the case on the docket until after the child is born. This is because, if there is a question regarding paternity, the test can't be done until after the birth. Further, because the issues of support and custody would not be determined until after the child was born, even if there is no question as to paternity, it would be preferable to have only one court action rather than two. Therefore, while you should consult an attorney for your state for the specific rule for your state, I can tell you it is quite possible that your husband is correct.

Q: I have been divorced since 1993. I have two biological daughters and one step daughter through my ex. Our agreement states we have joint custody, with visitation for me every 2 weekends In the past two years I have only seen my 2 daughters 4 times(they are 12 and 15). My ex takes them on all kinds of trips on my weekends with out even consulting me. I have said not too much about this because I have been trying not to upset my kids too much. My wife married a multi millionaire with whom I cannot compete nor do I want to. I live a simple, but happy life. My ex is very manipulative and has told my kids all kinds of lies about our breakup, except not the fact that she was having an affair in our own home with the man she then married one yr. after I left. I have not told the kids the true story for the same reason as I gave above. Now, I have discovered that my daughters are using the last name of their stepfather. I have physical evidence to prove this. Again I was not consulted, nor would I have given consent feel devastated by this latest turn of evil events my ex has encouraged. I pay child support every week and feel that if the step dad's name is being used now, then I should not be required to pay child support. Am I within my legal right to write to the ex and indicate this? Is there any law binding me to pay even though my kids no longer use my name? Please respond a.s.a.p. I am devastated.
Asked by "P" in Ontario

A: Please recall that we are a U.S. based site and I am educated only in US law. Canadian law may be entirely different. Nonetheless, since this is an interesting question, I'll give you some comment on how a US state court might approach this issue. To address your last question first, the general rule is that a violation of the terms of a custody order does not terminate the obligation to pay child support. Thus, even if there was some specific order regarding the names of the children (which would, of course, be very unlikely), you would still have to pay. Your remedy would be to bring an appropriate court action, such as a motion for contempt of court, or a motion to modify the existing order.

There are some specific exceptions in some states' laws to this general rule; for example, in Missouri, if a parent with custody voluntarily turns over custody to the other parent for greater than 30 days, then the other parent's support obligation temporarily abates for the time they keep custody, without the requirement of a court order. But this is an exception applicable only to this one particular state. Of course, I am telling you the "majority rule" and you should consult an attorney for your state for the specific rule applicable to your state; in other words, I am not saying that, in all states, violations of a custody order might not affect the support obligation. As far as the name change, the common law rule is that a person can use any name they desire so long as they are not doing so to deceive. Although I have not researched this issue specifically, I think one could possibly argue that using the stepfather's name rather than the children's original name might fall into that category.

Further, if you have joint legal custody (where you and your ex must agree on major issues regarding the children's upbringing), you could effectively argue that a change in the child's name falls into that category where agreement is required. Finally, simply using a new name (a "common law" change of name) is different from changing a name pursuant to the applicable statute. If your ex sought to change the children's name in court, you would be well within your rights to oppose that change due to your legally recognized status as the child's father.

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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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