Episode 154 - A Smorgasbord of Family Law Questions and Answers
Leh
Meriwether: Welcome everyone.
I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the
law firm of Meriwether & Tharp, and you're listening to Meriwether &
Tharp Radio. Here you'll learn about divorce, family law, tips on how to save
your marriage if it's in the middle of a crisis and from time to time, even
tips on how to take your marriage to the next level. If you want to read more
about us, you can always check us out online atlantadivorceteam.com. It's that
time of the year again, Todd.
Todd
Orston: Ah.
Leh
Meriwether: I'm [inaudible
00:00:37]
Todd
Orston: [crosstalk
00:00:37] Halloween.
Leh
Meriwether: Halloween?
Todd
Orston: I don't know.
What I mean…
Leh
Meriwether: We're past that.
Todd
Orston: That time of
the year. I don't know. Oh, for me to mock you mercilessly during the show.
Leh
Meriwether: That's every
show.
Todd
Orston: Okay.
Leh
Meriwether: That's not a time
of the year.
Todd
Orston: All right.
What time of the year-
Leh
Meriwether: It's time for
Q&A.
Todd
Orston: Oh.
Leh
Meriwether: Yes. Where we
take questions.
Todd
Orston: I wish you'd
have told me before I got here. I have a whole other show prepared.
Leh
Meriwether: Well, I wanted to
surprise you and put you on the spot.
Todd
Orston: I am
surprised.
Leh Meriwether: All right. Well, this is one of
those shows where we take questions that we've received or have come across
from time to time and we talk about on the air. We sort of break them down and
we do, often we'd go much further than actually answering the question. We use
those questions as an opportunity to explain divorce or family law whatever the
question may be. I have a smorgasbord here, I didn't narrow these down to just
divorce. We've done that before, but decided let's go with this smorgasbord.
Todd
Orston: Oh, my god.
Don't say that word again. Seriously? Seriously?
Leh
Meriwether: How about a
cornucopia of questions?
Todd
Orston: Oh. How about
just a lot?
Leh
Meriwether: Okay. Plethora?
Todd
Orston: Plethora,
yeah. You can handle plethora.
Leh Meriwether: Okay. All right.
Todd
Orston: Yeah. We do
this for like you were saying because, I mean, as a firm and as attorneys, we
know people have a lot of questions and sometimes getting access to attorneys
is difficult or costly. We do what we can to try and answer questions and hit
different types of issues in these questions so that anyone can listen to the
shows, can read a transcript, can go on to our website, and can educate
themselves because really when it comes down to it, such a big part of this
entire process is about education.
If
you can educate yourself or have someone, an attorney, help educate you about
the process, it can avoid the pitfalls that a lot of people, unfortunately,
can't avoid where they get stuck and they're trying to settle but one party
wants one thing, the other party wants something dramatically different, you
don't know what's right, you don't know what's reasonable. We try to give some
information to help and maybe that'll help you bridge the gap and be able to
settle.
Leh
Meriwether: All right. Let's
dive in. Let's start with… Actually, this is a nuanced child support question.
Question is, can I sue my ex-husband over travel fees? Since the order was
established in 2014, he has not made any travel to pick up our son. He said
that he would spend $545. Let's say, no. He would pay $545 in child support,
but we would receive $300 because of that 545, he would be spending $245 to
travel, the cost to travel to see his son, but he hasn't traveled at all in the
four-year period.
That's
what's called a travel deviation. That's allowable under Georgia law and many
other states have a similar type of deviation. You have a standard set of child
support. What it sounds like is the guideline said he should have been paying
$545, but since he was claiming it was going to cost $245 to visit, because I'm
guessing he lived far away from where his son was living that he gave him
deviation so he didn't have to pay as much. But, in this case, he never
visited. He used that as an excuse not to pay as much child support. Now-
Todd
Orston: Or maybe his
motivation was he was going to exercise. I mean, I'm not going to be-
Leh
Meriwether: Well, you're
being awfully generous here.
Todd
Orston: I'm trying.
I'm trying. It's the season, right? No. But you're right. Travel deviations are
normal and really this can be fixed. It's a modification really. At this point,
that's really what you need to be looking at.
Leh
Meriwether: In this case, you
can't… The short answer is no you can't get that money back. What you can do is
follow modification, and in this case, she can actually… I think in Georgia
anyways, the statute says if you got a deviation, a downward deviation because
of travel deviation and you did not exercise that travel deviation or is, that
I think it says, "You shall get attorney's fees."
You
can come back to court and the court may be required to award you attorney's
fees. I don't know how that impact… There's been some changes in the law since
that was put in the statute a while back but…
Todd
Orston: It would
definitely be worthwhile talking to an attorney, okay, because what you're
talking about is the attorney fee award that goes along with a modification.
The underlying way to fix this is a modification, would be a modification of
child support where you are basically going in and you were saying that there
has been a material change of circumstance that change being, he got a
deviation for travel, he is not traveling anymore. Therefore, judge, child
sport needs to be revisited and reset basically and you don't include a travel
deviation. Under these circumstances, you would probably have a good chance of
getting it.
Leh
Meriwether: Yes. The other
thing I might say is don't wait. Don't wait four years. If he's not, if he
hasn't visited… I'd give someone a year and if they didn't visit in that year
time period, I would come back to court.
Todd
Orston: Well, and in
this one, I don't know if you've waited long enough, 2014. No. I'm joking. That
was a little sarcasm. If truly this was established, child support was
established in 2014, and since that date, he has not done any traveling, that's
more than enough time.
Leh
Meriwether: Yeah.
Todd
Orston: But you're
talking about, for other people listening who might be dealing with a similar
issue, we are not talking… I agree. We're not talking about the other party
misses one visit-
Leh
Meriwether: Yeah. Correct.
Todd
Orston: … or
something. There has to be a pattern of inactivity, of a failure to exercise
parenting time. If it's one or two times, even maybe three or four times. The
court might look at it and go, "Well, hold on one second. Life happens,
they weren't able to visit, but I'm not going to change things."
Leh
Meriwether: Or what could
have happened like I've actually seen this happen before where they had plenty,
they thought it was going to cost them X number of dollars to visit, and then
there was a crisis with gasoline and the gasoline prices shot through the roof,
and so all of a sudden that $245 wouldn't last for one trip a month. It
basically doubled. Now, [inaudible 00:07:12] they had to cut the travel in half
because there's not enough money.
Todd
Orston: The court is
not going to, in essence, punished that one party because life happened because
something happened. You really have to think of all the facts and circumstances
surrounding that issue before you raced to court, file a modification because
you don't want to do it if you don't really have a good chance of success.
Leh
Meriwether: Right. All right.
Todd
Orston: All right, next
one. My mom has temporary custody, can she deny me visitation? Here the person
says she got, I'm assuming she means my mom got custody of my kids when I went
to rehab. I stayed there two years but kept them every other weekend. Then, I
moved in with them but never got custody back. I then relapsed and got help and
two months after leaving home. Now, I haven't been able to see them since May.
Again,
forgive the choppy reading. I'm doing my best trying to summarize what is
written here, but basically, this is somebody that has an unfortunate issue.
All right. A drug or alcohol whatever it is, substance abuse issue. What it
sounds like is a guardianship was established where this person's mother, so
the child or children's grandmother basically got a guardianship where she was
able to then take over the parental duties for these grandkids.
Leh
Meriwether: Put the kids on
her, probably on her insurance [crosstalk 00:08:44]
Todd
Orston: Right and
enrolled them in school and all the things that a parent would be able to do
now with a guardianship, the grandmother can do. Basically, the only thing that
you can do at that point and you don't want to do this if you are not clean.
Leh
Meriwether: Yeah.
Todd
Orston: If you're
still battling with, if you're not stable and you're still battling with
substance abuse issues, then it's not the time to try and fight this fight,
because of court's going to be considering, "What is in the children's
best interest at the very core of that decision?" It's what's going to be
best for these kids? If you're not clean and if you haven't successfully dealt
with these issues and put some time.
In
other words, giving it some time where I'm clean. It's not like, "Well,
I've been clean for a week."
Leh
Meriwether: Right.
Todd
Orston: All right. You
have some time where you've been clean, you've been on the straight and narrow,
you… All right. Then, you can file to try and terminate the guardianship.
Leh
Meriwether: Right.
Todd
Orston: What that
sometimes opens up the door to if maybe you need a little bit more time to show
stability, maybe it opens up the door at the very least to negotiating with the
grandmother, if the grandmother says, "I'm going to fight you and I think
I have a winning case." Maybe you can then work in some parenting time,
some visitation, if you will, with the kids while you continue to work on
yourself.
Leh
Meriwether: Yeah. I would add
to that if you go into court too early and you truly have not gotten a hold of
the substance, whatever you're struggling with, the court action, all the
stress of the court action could send you into another relapse.
Todd
Orston: Yeah. It's a
great point.
Leh
Meriwether: I think there's
two sides of this coin. There's the legal side, and then there's the practical
side and that's what I think people should weigh a lot more heavy-
Todd
Orston: Great point.
Leh
Meriwether: … is the
practical side. I think if you… Going back to your point, you show grandma or
your mom, you show, I've been clean for two years, you're probably not going to
have a fight at that point.
Todd
Orston: It could be a
year. It could be eight months. It could be… You need some evidence to show you
are successfully dealing with this issue and you are ready to step back into
that parental role.
Leh
Meriwether: Up next, we're
going to continue to break down some, a smorgasbord of questions. I just wanted
to let you know that if you ever wanted to listen to the show live, you can
listen at 1:00 AM on Monday mornings, WSB. You can always check us out there as
well.
Todd
Orston: Better than
like counting sheep I guess, right?
Leh
Meriwether: That's right.
Todd
Orston: You can turn
on the show and we'll help you fall asleep.
Leh
Meriwether: There you go.
Todd
Orston: I'll talk very
soft.
Leh
Meriwether: Welcome back, everyone.
I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the
law firm of Meriwether and Tharp and you're listening to Meriwether and Tharp
Radio. If you want to read more about us, you can always check us out online,
atlantadivorceteam.com.
Well,
today we decided to take on some questions and answer them on the air, trying
to throw some curve balls at Todd. See if I can trip him up. He's not tripping
yet.
Todd
Orston: You will not
trip me.
Leh
Meriwether: I got one that-
Todd Orston: You almost trip me just
now, I didn't even know if you were talking to me.
Leh
Meriwether: I got something
that may trip you up. Well, we're talking about drugs in this one so.
Todd
Orston: All right. I
will take my chances.
Leh
Meriwether: Can DCS drug
screen me if I live in a different state and are visiting? I'm visiting my
mother in another state and she has temporary custody of three children due to
their parents being on meth. I was told because we were going to be in her home
that DCS will make us do a drug screen. Can they legally do this if I'm not a
resident of that state?
Todd
Orston: All right.
That's an interesting one. First of all, DCS can't… Tell me if I'm wrong. They
can't force you, they're not putting a gun to your head, taking you to a drug
screening location and forcing you to do anything. But if they are the agency
in charge of making decisions or giving opinions to the court that relates to
custody and that custodial issue and decision could affect your rights, you
saying, "No. I will not submit to the test," might affect, not might,
will likely affect and impact the DFCS workers decisions and opinions relating-
Leh
Meriwether: Recommendations.
Todd
Orston: … and
recommendations relating to custody. So, no, you come in for a holiday, do I
anticipate a DFCS workers showing up with three officers and forcing you to go
potty in a cup? No. I don't think that's happening. But by saying no, if you
are part of an active investigation and there are things-
Leh
Meriwether: Well, I think in
this case it was his mom that is or his mom has custody, and so he's concerned
or he or she is concerned if they go visit that since they're in the house with
the children, they could, he's concerned that can he be forced. I mean, you
answer the question I would think correctly. Well, at least, here in Georgia,
you can't be forced, but they could, because if they… If they placed the
children with mom or grandma, they can take the children away from grandma if
they think the children-
Todd
Orston: For instance-
Leh
Meriwether: … are not safe.
Todd
Orston: Right. For
instance, if the parents are saying your mother, right, the person who has
custody right now, temporary custody, is not safe because she has children,
you, and you come into town all the time and you're doing meth, and you're
doing meth around the kids, okay, then if you say, "No. I'm not submitting
to the test." Then, what are they going to believe? They're going to then
say, "Well, you know what? Maybe he is doing meth, and therefore, maybe
this is an unsafe environment, and therefore, maybe we do need to take the kids
away." It could absolutely impact your mother's case as it relates to the
placement of the children.
Leh
Meriwether: You just have to
decide, I mean, you could… I don't know other states so right now we're just
talking about Georgia. I don't know if they're visiting at other state. I would
imagine it's the same thing because there's no probable cause to force someone
to do a drug test.
Todd
Orston: Right. There's
no court order either forcing that-
Leh
Meriwether: That person.
Todd
Orston: … that you
submit.
Leh
Meriwether: Right.
Todd
Orston: Right.
Leh
Meriwether: I would imagine
that you couldn't, but you need to talk… Well, first off, if you're not doing
drugs, there's nothing to worry about but if there's an issue there, maybe
marijuana or something like that or there's a possibility of a positive drug
test because of perhaps you have an opioid subscription, a prescription, not
subscription, a prescription which will be legal, but it just creates a mess.
Talk
to your mom about it, find out how serious the situation is, and how likely are
they just to show up at the house?
Todd
Orston: All right. How
about this one? What do I do when a stepparent threatens a child and the child
feels endanger and scared? The writer writes, "What do I do when a
stepparent has been harassing and threatening a child?" This parent has
not adopted the stepchild and has no legal right over them. They have been to
prison before for stealing money from a country club, then burning the money
and the club down. Lovely. The child stood up for his mother when he was being
harassed and he continued to tell the child, he didn't care if he went to jail
again. The child would not talk back again or else, i.e. there was a threat.
Basically,
this is a child is living with the mother and a stepparent and that
stepparent's behavior is less than ideal. What can be done? The bottom line is
if the writer, I couldn't tell, but if the writer is the other parent, then
once again, it's a modification. I mean, at that point what you're doing is you
are petitioning the court for a modification of custody and parenting time by
stating that it is an unsafe, unstable environment that this person poses a
threat or danger to the child or children, and therefore, the courts
intervention is required in order to safeguard the child or children and take
them out of that unsafe, unstable environment.
Leh
Meriwether: You have to be
careful here because I'm going to throw in this, the word of caution because we
know that sometimes kids exaggerate things. We don't know if the step-parent
really had done these things, the child could be just saying that maybe-
Todd
Orston: Or the child
could be just misbehaving, and then when he plays parent, the child is angry.
Leh
Meriwether: Right. Which
we've seen happen before. One parent gets a completely different story and all
that was, was a, it was, there was no, there was discipline going on, there was
no corporal punishment, but there was discipline, the child doesn't like the
discipline because they don't like the person who's giving the discipline. They
tell the story or maybe in their minds it's true, but it's a dramatic
exaggeration of what actually happened.
You
have a decent relationship with the other parent, I strongly recommend first
calling the other parents say, "Hey, Johnny just reported this to me. I
want to know, we need to be on the same page when it comes to our son. What's
going on?" No accusing. Just say, "Here's the fact I heard." Then
asked a question.
Todd
Orston: That may not
be possible though because we've also seen situations where if a child is
saying, "I am… I'm being abused emotionally, physically, psychologically,
and therefore, going to the parent would open that child up to retaliation or
whatever. I understand, it may not be possible. I think what you're saying
though is a 100% spot-on and correct.
The
problem is if you can't go to the parent, which would be ideal, the other
parent, to identify whether or not there's any truth to this, then you better
have a heart-to-heart with the child and do what we do as attorneys, where it's
almost like a little cross-examination, where it's like, "Look, if I go to
bat here, if I'm going to do something to try and protect you, I better not
find out that you're misbehaving, that you did…" If it's like, "Well,
he yelled at me and that was wrong."
Okay,
but you also stole a $100 out of his wallet. You broke into the liquor cabinet
and they have a right to be angry. I need to know, what did you do? Did you do
something wrong that as I'm fighting for you the judge looks and goes,
"Well, that was reasonable parenting." You have to… Don't just jump
into this, file something, and think, "I'm going to win the day." You
better be sure about what you're trying to accomplish.
Leh
Meriwether: Yes. Because I've
seen it happen both ways. One where the child was being disciplined, dad heard
a different story, big old case starts, both parties spend lots of money, and
then nothing at the end changes because it, and unfortunately, it took, what? A
year of litigation before the true story came out, which was unfortunate.
I've
also seen where there was actual, the child was actually in danger and this was
a real interesting case because it was a hotly contested custody case, where
dad won primary, physical custody, and mom at… This is a few years later, he
had managed to actually develop a co-parenting relationship with his ex-wife
despite the really contested divorce case, and because of that relationship,
because he worked hard to develop that co-parent relationship, gave her a lot
of extra time, that sort of thing.
But
she had met somebody that was physically abusive and the daughter kept seeing
it. He went to her and said, "Look, what can I do to help you get out of
situation because I know you love our daughter, you know I love our daughter,
what can I do?"
What
he wound up actually doing was giving her like $1500. He didn't have to. He
gave her $1500. She broke up with the guy, moved out, when he wasn't there.
Then, she got a place of her own using the $1500 and that solved the problem.
That $1500 was far cheaper than a contested litigation.
Todd
Orston: Absolutely.
Leh
Meriwether: The answer isn't
always litigation. If you can work on that co-parenting relationship. Well,
that's why co-parenting is so important, really.
Todd
Orston: But it's not
only about or it's not just about litigation. Litigation should be the last
recourse, okay? It's all about, in my mind, education. Meaning, you have to
have the information you need to know whether or not you have a good case,
strong case. People come to attorneys because we have the knowledge and
experience to say, "Do you have a case, do you not have a case. You have a
good argument or a bad argument."
Don't
just jump into litigation unless you know you have the evidence necessary to
accomplish what you're trying to accomplish.
Leh
Meriwether: Exactly. Up next,
we're going to answer the question, how do I file a complaint against the judge
who wouldn't hear my side in a case and hung up the phone during a court call?
Todd
Orston: Hey, everyone.
You're listening to our podcast, but you have alternatives. You have choices.
You can listen to us live also at 1:00 AM on Monday morning on WSB.
Leh
Meriwether: If you're
enjoying the show, we would love it if you could go rate us in iTunes or
wherever you may be listening to it. Give us a five-star rating and tell us why
you like the show. Welcome back, everyone. I'm Leh Meriwether and with me is
Todd Orston. Todd and I are partners at the law firm of Meriwether and Tharp,
and you're listening to Meriwether and Tharp Radio. If you want to read more
about us, you can always check us out online, atlantadivorceteam.com.
Todd,
I want to hear your answer to this.
Todd Orston: The answer?
Leh
Meriwether: Or is the answer,
"Leh, you answer it."
Todd
Orston: The answer is
blue.
Leh
Meriwether: Blue. Okay. All
right. Well, the question is, how do I file a complaint against the judge who
wouldn't hear my side of the case and hung up the phone on me during our court
call? I have a family law case with my ex-husband and he's wanting to take
custody because she is in school and feels that I'm using the excuse as for her
not to visit him. I'm in Georgia, he's in California. They believe that the
schools start at age six for the kids, when it's actually age four.
I
get to read between the lines, I guess, she enrolled the child in preschool and
maybe in California that starts at six, and so she's trying to block the other
parent's visitation time as a result. Well, so the important lesson here is,
first off, I don't know California law so we're going to have to speak on
Georgia. The important lesson here is you must get a transcript of any court
hearing.
So
a transcript is where a court reporter is taking down every word you say, the
judge says. Basically, anybody involved in the case, every words being taken
down by the court reporter. There's a cost for it, most court reporters here in
Georgia, they're $45 an hour, and then you have to split that cost with the
other side if they agree. You need to come into court with your checkbook ready
to pay for the court reporter.
Now,
there are some places that actually will audio record everything so it's
automatically taken care of, but then you have to pay for the transcript later.
Before you walk into that courtroom or show up on that phone, you need to know
is this case being taken down and how, because if you don't, there's nothing
you can do, because there's… It's your word against the judge in this case and
the other side probably too, so it's critical it's taken down because if it is
and the judge did something wrong, that can be appealed.
Todd
Orston: Well, yeah.
There's really two sides or two ways to attack it. You've got the appellate
issue you were just talking about. If there was an issue of law that the judge
just violated your rights by not giving you your say, then it could have opened
the door to an appeal. If the behavior was truly egregious, then you want to
contact the Bar. If this is in California there might be some kind of a
judicial qualifications committee or commission that basically can, if the
behavior was bad enough, and it's got to be really bad, but could look at
whether or not the behavior rose to level of it deserve sanctions of some kind.
But
I'm telling you right now that should be your last option, especially if you
have a pending case and that is something absolutely contact an attorney in
California. If that's where you're saying all this happened, pick up the phone,
do whatever you have to do, get an attorney who understands the law,
understands the judge, understands the system, and get the advice you need
because you do not want to go down that path of start, you start throwing
stones at a judge only to find out that the judge did everything correctly, you
just didn't understand the system.
Now,
you've just painted yourself as somebody who is just litigious and unreasonable
and that could affect you in different ways.
Leh
Meriwether: Because
procedurally, maybe there's a procedure in California that if someone filed a
motion and you don't file a counter to that motion, a response to the motion,
you don't get to say anything in the courtroom in response. I don't know the
rules there, but that there is that possibility so to your point, like the
judge could have been following the procedure correctly, you didn't know it,
and then you make a complaint against the judge, and now, you've really ticked
off the person deciding your case.
Todd
Orston: Just so you understand,
they may have the right to terminate the call whenever they want. I have seen
judges in a hearing, they finish the hearing, they are done, another party or a
party or an attorney wants to say something else and the judge stands up and
walks off the bench. That's sort of the in-person equivalent of hanging up on
them. Can a judge do that? Maybe. That's why talking to an attorney, it'll
educate you and you'll understand whether or not you do have rights or any kind
of recourse.
Leh
Meriwether: All right.
Another question.
Todd
Orston: All right. How
about this one? Can I pick my children up on their father's parenting days
instead of his mother while he is out of state for work? Father is out of state
for work for a week during his parenting time, he is going to allow his mother
to keep the children instead of the children's mother. The children's mother
has primary custody and the father has secondary custody.
Basically,
what I'm understanding is that the biological mother of these children, the biological
father, he works, he has secondary custody, and during a period of time that
he's supposed to be exercising parenting time is going to be out of town for
work, and instead of that person, the father, saying to the mother, the
biological mother, "Why don't you go ahead and take the kids? I'm going to
be out of town." The biological father is like, "Ah-ah, grandma's
going to step in into my shoes and will provide the care necessary for the
kids, and no, you don't need to do anything." Now, the question then
becomes, can I do something about it? Leh?
Leh
Meriwether: Well, it depends
on what's in the parenting plan. If there is a rule… It's called a right of
first refusal on the parenting plan, which most judges actually don't like,
that says that if a parent is going to be gone for more than 24 hours, for
example, or 12 hours or they vary, that the other parent can step in during
that parenting time. If there is no right of first refusal on the parent plan,
dad can do whatever he wants with the kids on his time.
In
fact, we actually try to encourage that when you have a secondary custodian,
you have some grandparents that we're active in the children's lives and
they're thinking about, "Well, do I need to file an action and get
involved in the divorce case?" We say, "No. No. Why don't you let,
you share some of that time with dad." The paternal grandparents because
we try to recommend that sometimes so dad could do what… I mean, as long as
he's not doing anything illegal or putting the children in harm's way, what he
does on his time is entirely up to him. What you do on your time, a mom does on
her time is entirely up to her.
Todd
Orston: Yeah. It also
is going to come down to what kind of out-of-town job are we talking about?
Meaning, what's the duration? If we're talking about a weekend, and again,
building on everything you already said, if there's something in the parenting
plan, right of first refusal, all right, if there is a right of first refusal,
then great. Then, you just have to follow the rule as it's stated in your
parenting plan order.
But
bottom line is you could potentially go back to court and modify if warranted.
Meaning, if this is for the next weekend or for even a week, he's going to be
out of town working, you don't want to do anything. If he took a job on an oil
rig in the Gulf and he's going to be gone for six months to a year-
Leh
Meriwether: Six months. Yeah.
Todd
Orston: … then, that
may absolutely open the door. If he's like, "No. No. Every visit will now
be with grandma." That may open the door for you to go back to court.
That's a material change of circumstance that you can say to a judge basically,
"While I'm okay with grandma having some time, grandma is not the father,
and therefore, while he's out of town, we need to work something else out and I
want the children to primarily be with me."
But,
again, the facts have to warrant that kind of effort because that's a lot of
effort, could be a high cost and it may not even be successful.
Leh
Meriwether: Exactly. All
right, speaking of warrants. We can squeeze in one last question. Why was my ex
not charged with parental kidnapping? My 12-year-old daughter called for her
mom, unknown to me, for her to come and get her during my visitation. We had
joint custody. She was upset, I wasn't allowing her to watch TV, and so she
called her mom, her mom shows up, she tries to take the children, police are
called, daughter stays with me, but she was not arrested or given a trespass
warning for attempted parental kidnapping. Why was she not charged with
parental or attempted parental kidnapping for coming to get my daughter on my
time?
Todd
Orston: Oh, I'm
waiting for your answer.
Leh
Meriwether: So, I want you to
answer it.
Todd
Orston: Oh, it's my
turn. Okay. Got it. Got it. Because they're a parent, all right, and they have
custodial rights, it sounds like they do have some custodial rights, the police
are going to look at this as a civil matter where they are going to say,
"If they are violating a court order, then it is contempt of court."
Meaning, it can be looked at as contempt of court.
Usually,
where you see, as a former prosecutor I would tell you, that usually where you
see parental kidnapping cases is where it's either somebody who is not, has no
legal rights, so maybe there's no legitimation or, and that's a situation where
they could have legal rights but they just haven't established them yet or
somebody that truly like a grandparent or someone, an uncle, someone who
doesn't have and can't get legal rights and they just abscond with the child,
that's parental kidnapping.
Usually,
when you're dealing with a situation where it's a parent taking a child not
during their parenting time, you're not going to get a criminal charge brought
against them, what you're going to do is you're going to immediately contact
the police, see if they will help, if they don't end up helping, you run to
court, you file an emergency motion for contempt basically, in order to try and
get your child back.
Leh
Meriwether: Right. The police
just don't like to get involved. The only other time I've seen parental
kidnapping is if there was a order that the other parent had supervised
visitation because of some drug or alcohol addiction and they suddenly take off
with the child. That's when I've seen the police get involved as well. Well,
we'll hit some more questions when we come right back.
I
just wanted to let that if you ever wanted to listen to the show live, you can
listen at 1:00 AM on Monday mornings, WSB. You can always check us out there as
well.
Todd
Orston: Better than
like counting sheep I guess, right?
Leh
Meriwether: That's right.
Todd
Orston: You can turn
on the show and we'll help you fall asleep.
Leh
Meriwether: There you go.
Todd
Orston: I'll talk very
soft.
Leh
Meriwether: Todd, I got a good
question for you.
Todd
Orston: Oh, god. Oh,
the comments I could make right now. What is your good question, Leh?
Leh
Meriwether: Here's the
question. My husband and I agreed on a divorce and he would move out by the end
of the year. Now, he's changed his mind, what can I do? This is my second
marriage to my husband but we both agreed that this, we missed this one too.
Now, that we are close to the time for him to leave, he has changed his mind.
He wants to stay until April of 2020. His name is not on the deed and he has
stopped paying any of the bills.
He
has taken his name off the bills [inaudible 00:34:29] name from his account and
we both closed the joint account. Do I have any recourse to have him removed?
Todd
Orston: It depends.
Depends on what I'm… I'm not understanding here where it says my husband and I
agreed on a divorce. If that means that you have not just agreed in concept to
the fact that you are going to go through a divorce again, but you have reached
an agreement and have written out that agreement, and you have a signed
agreement, maybe it's even filed in a divorce action, very, very different.
If
you have agreed in concept to some terms and those terms include that you will
get sole use and possession and ownership of the home and he will move out by a
date-specific, then if he wakes up and he says, "Yeah, by the way, I'm not
moving out." Well, then, you don't really have recourse because you don't
have an agreement. You can't enforce something like that or it becomes very
difficult to enforce something like that.
The
court is going to want something in writing that the court can enforce. If you,
on the other hand, have an agreement and it's written and it's a contract and
now he goes, "Well, yeah. I know I was supposed to move out today, but
give me another six months." Your response is, "Okay. I need you out.
I have an agreement and if you don't get out…" If the case hasn't been
finalized, you better start working to get that case finalized so that
settlement agreement becomes an order of the court. That's how it works.
You
file a, what we call a final judgment to creative divorce, and that will
incorporate a settlement agreement. Once that happens, the terms of the
agreement become a part of the order, it can be enforced by a judge. You want
to get that done as quickly as possible so you can move to enforce that
agreement. If that's already been done, then you may have to file a contempt
action with the court saying he's not in compliance with the court order, that
requires him to move out by a date-specific, and hopefully, the court will not
only have him, not have him removed, but make sure that he is removed, but
could also sanction him.
Leh
Meriwether: Right. If they
haven't filed anything, probably her next best step, if he's going to suddenly
not cooperate at all, she needs to go ahead and file for divorce, and if
nothing's been input in writing, she would need to push for mediation as quick
as possible or if there's some tension in there, in the household, she could
ask for a temporary hearing and ask the judge to make him get out.
Todd
Orston: The court
might look at that favorably. Meaning, if this happened months ago and you've
done other things to separate and head down this path of divorce and the court
hears the story that you entered into this agreement and he was supposed to do
XYZ, he was supposed to move out by a date-specific, and now all of a sudden,
he's not doing it. The court could look and go, "Well, but you've done all
these other things too."
Leh
Meriwether: Right. Like, stop
paying all the other bills.
Todd
Orston: Yeah. Right.
No. Go ahead, sir. I want you out. It may not be that date but, hopefully, it's
close to that date, and then you could focus on getting the divorce.
Leh
Meriwether: Yeah. All right.
Do I have to give my jewelry back after a divorce? I got married in Georgia and
two weeks later, he decided to leave me. Three months later I got served with
divorce papers and he's asking for his gifts back such as engagement ring,
wedding ring, and a gift which his mom gave me. In Georgia, do I legally have
to return his gifts and the engagement ring?
These
gifts like an engagement ring, that's considered a conditional gift. The
condition is I'm giving you this ring and if you meet the condition, we get
married. It's yours. Now, the wedding ring arguably is marital property but he
can't force you to give back an engagement ring. He might argue those are
"marital property." The judges don't… I've never actually tried a
case with this.
Todd
Orston: No. Yeah. Here's
the challenge. The challenge is sort of like what you were talking about. The
wedding ring you get arguably during the marriage. It's like-
Leh
Meriwether: Well, during the
ceremony. Yeah.
Todd
Orston: During the
ceremony and you're sort of getting it right at the beginning of the marriage.
The engagement ring you got, it was a premarital gift-
Leh
Meriwether: That's yours.
Todd
Orston: … a
conditional gift so when you get into a divorce situation and you were talking…
Here in Georgia, it's called equitable division of property. When you're trying
to divide property equitably, it doesn't mean it has to be 50/50. It doesn't
mean equal. It means what's fair and reasonable under the circumstances of your
case.
Then,
the courts can be looking at it and looking at all these facts and go,
"Okay, well, what's the marital property? What's the separate
property?" Marital property the court might go, "Well, the wedding
ring and there might be some other jewelry and gifts." If gifts were given
beforehand, if you got a watch for a birthday or something like that, that's
your separate property.
Leh
Meriwether: Right. That's why
the engagement ring is your separate property.
Todd
Orston: Right. So, it
becomes difficult if not impossible to get that back. Meaning, him to get it
back. Wedding ring might be deemed marital property.
Leh
Meriwether: Which I think
you're right that it was given before the announcement that they were married.
It's part of the ceremony so arguably that's separate property too.
Todd
Orston: Yeah. So, and
the law… I mean, I've seen courts go different ways on this so I'm just telling
you this. What you have going for you is that they are gifts and often times
courts will want to allow you to keep certain gifts, but you've also been,
what's going against you is, it's a two-week marriage.
Leh
Meriwether: Yeah.
Todd
Orston: A court might
be looking at this going, "Well, hold on one second. I mean, why is it
reasonable for you to keep all of this jewelry, all of this expensive property
when you only stayed married for two weeks?"
Leh
Meriwether: Now, my counter
to that like if you were to argue that would be, "Judge, it's his… He's
the one who moved out. He's the one asking for this and she spent $20,000 on
this wedding ceremony." [inaudible 00:40:46] and so, "Look, if the
court's trying to be fair, why should that, he just…"
Todd
Orston: That is the
counter. Right.
Leh
Meriwether: That's the
counter.
Todd
Orston: Absolutely. My
argument was not saying that's the right one [crosstalk 00:40:58]-
Leh Meriwether: Right. You're just saying that's
the argument.
Todd
Orston: … Devil's
advocate, his argument or the court… Well, his argument would be, "Why
should you dedicate two of your weeks to me, and then all of a sudden you get
to keep thousands and thousands of dollars' worth of jewelry?" The court
might look at it that way and go, "I'm going to give some of that jewelry
back."
Leh
Meriwether: I think the short
answer, I think this is more of a practical answer than anything.
Todd
Orston: I agree.
Leh
Meriwether: How much is that
ring worth and how much money are you willing to spend in attorney's fees to
keep it? If you're talking about $30,000 ring and it's a two-week marriage, you
could probably get in front of a judge pretty quick for a final hearing, but if
it's a $3000 or $4000 ring, you're going to spend that much with a lawyer
easily, if giving him back one of the rings makes this happen and gets rid of
this person that sounds like they weren't much of… I mean, that just sounds
crazy to me.
I
mean, getting married, going through all that, and then leaving after two
weeks. I mean, this sounds to me like they're doing you a huge favor. You may
just want to give it back and just be rid of them. I mean, that-
Todd
Orston: But it
depends… You're 100% right. It depends on what kind of a fight you want.
Leh
Meriwether: Yeah.
Todd
Orston: I mean, if
your tolerance level is pretty high and you're like, "I don't care. I'll
see you in court." Well, then, okay. But you know what you're getting
into.
Leh Meriwether: Yeah. All right. Are you ready?
Todd
Orston: Yeah.
Leh
Meriwether: Okay. It's kind
of a long question. We only have two minutes left so you got to give a quick
answer.
Todd
Orston: All right.
Leh
Meriwether: All right? Do I
have to go to mediation before I can file for an order violating if my
ex-husband is not paying what he owes me? He owes me the interest in the
marital home. He sold it but does not, he's refusing to pay her. There's a
clause in their agreement that says if either of the parties wishes to
challenge the other's compliance with the terms of this order the parties are
directed to appear before the mediation center in the county for at least one
session of good-faith mediation to resolve their dispute as a condition
precedent to filing any action to enforce the terms of this order.
Upon
mutual agreement, the parties may substitute a private mediator blah-blah-blah,
the party must schedule and appear for the mediation within 30 days of the
first written request, but this provision shall not apply in circumstances of
contempt or modification actions regarding inability to pay or failure to pay
any support obligations.
Todd
Orston: It all comes
down to the terms of the agreement which become the terms of the order right.
If the order says you have to go to mediation, then you have to go to
mediation. But it's going to be based on the specific terms of the order, and
here, at the very end, it says the provisions shall not apply to the following
circumstances, contempt or modification actions regarding inability to pay or
failure to pay any support obligation. If we're talking about support, and he's
failing to pay all of the support, it doesn't look like you have to go to
mediation.
But,
again, my best advice would be talk to an attorney. At least, pay for a
consultation with an attorney who can review the agreement, review those terms,
and tell you what you need to do because you want to walk into that court
wearing a white hat saying, "I've done everything I'm supposed to do. He
did nothing he's supposed to do. Please hold him in contempt."
Leh
Meriwether: It sounds like
when she said interests in the marital home that sounds like an equitable
division issue, not support.
Todd
Orston: Right. Which
means that you would probably have to go to mediation.
Leh
Meriwether: Unfortunately, we
have to end the show. Hey, everybody. Thanks so much for listening.