Episode 104 - Child Custody Questions and Answers Part 1
In this show, Todd and Leh take on more child custody questions. They cover questions like: How to file a child support and parenting plan for a child that was legitimized years ago?; Can a father legally keep his kids from being around his ex wife's step son?; and How does someone force an Emergency Custody Hearing ?.
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 on The New Talk 106.7. 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 at AtlantaDivorceTeam.com.
Todd Orston: Well done.
Leh Meriwether: I'm getting better.
Todd Orston: Yeah, we're constantly learning about positive affirmation and-
Leh Meriwether: That's right. Thank you.
Todd Orston: ... all that. So there's not much I can say good about you. So that's a great intro, Leh, again.
Leh Meriwether: [crosstalk 00:00:52]-
Todd Orston: That's not true. [inaudible 00:00:53].
Leh Meriwether: I think you need to start practicing.
Todd Orston: Saying good things about you?
Leh Meriwether: No. Doing the intro.
Todd Orston: It'll be hard work.
Leh Meriwether: Doing the intro.
Todd Orston: Oh, doing the intro? You do such a great job. I'm gonna ride your coattails on that one.
Leh Meriwether: You're gonna ride my coattails on that. All right, well, today we actually don't have a single topic for today.
Todd Orston: But you're still excited.
Leh Meriwether: I'm still excited.
Todd Orston: All right. So today we're gonna do what? We're gonna do another ...
Leh Meriwether: Q&A.
Todd Orston: Absolutely. So Q&A question and answer. Basically we gather a whole bunch of family law questions that we can then answer. So many people have questions. They have to contact, even pay for conferences with attorneys. What we do is try and gather some of these really great questions and offer answers basically telling you what we as professionals, what our opinions might be if that person were to be sitting before us asking questions about a case or about their situation.
Leh Meriwether: Right. And we use these questions to help explain certain aspects of family law and divorce law. It looks like a lot of these questions actually surround just plain-old child custody.
Todd Orston: Plain-old?
Leh Meriwether: Plain-old. There's really not a whole lot that's plain about child custody. Some of the times you just can't make up these facts.
Todd Orston: Well, I'm not gonna lie. There were some questions we chose not to talk about [crosstalk 00:02:25]-
Leh Meriwether: This is true.
Todd Orston: ... they are far from G-rated. And-
Leh Meriwether: Yeah. Or even PG-13.
Todd Orston: Or PG-13. Hey, you know. Yeah, definitely a higher rating. So, yeah. All right, so let's jump in. And how about the first one? Question has to do with how to file child support and visitation. Basically there's an agreement for a child that was legitimized eight years ago. Question, and I'm summarizing, is, "We had a child out of wedlock in '09. At the time of birth, father and I signed a voluntary acknowledgement of paternity and also signed the bottom portion to legitimize the child. We lived in the same house up until recently. We have already jointly agreed to child support and visitation. But the dad wants to," the word that was used, "validate this through the court and have an official order filed. How do we do this?"
Todd Orston: It's impossible.
Leh Meriwether: Yeah. No.
Todd Orston: No, that's not true. It's absolutely possible.
Leh Meriwether: It's relatively easy, especially if the two of you are in agreement. And then what you do is you put together child support worksheets to match. I mean you've gotta make sure the worksheets are justified. So sometimes it's not just a matter of agreeing, "Well, yeah, I'm just gonna pay $100 a month." Well, the worksheets if they don't show that, the court may not accept that agreement.
Todd Orston: It has to conform to the Georgia guidelines.
Leh Meriwether: Correct. And put together a formal parenting plan. Write it all out. And then submit it to the court. You file what's called a consent legitimation. And it sounds like ... And we're speaking strictly about Georgia at the moment, because years ago or two years ago, for a series of several years, there's what's called an administrative legitimation, where when you sign the birth certificate, you also sign this section that says, "I'm legitimizing the child." Well, that, for whatever reason, created confusion in the courts and created irregular results. And as a result of those irregular results, the legislature did away with administrative legitimation, which means that you always need to file it with the court to get an order granting legitimation.
Todd Orston: Yeah. And to be clear, what you're filing with the court it's not like you get this document, this acknowledgement of paternity and legitimation documentation at the hospital, let's say, it's not that you fill that out and then submit that to the court. You actually have to jump through some fairly significant hoops. It's not anything, especially in a consent situation, that you can't do yourself. But there are complications. You have to file a petition for legitimation with the court. And in that, you're asking, the father, therefore, is asking for that relationship between he and the child to be legitimated, to be made legally formal.
Todd Orston: And so you can deal at the same time with the issue of child support. But again, like you were saying, it's not complex, but it's complicated.
Leh Meriwether: Right.
Todd Orston: Right? We're not talking about physics here. We're not talking about some very complex kind of issue. But there's a lot to it. There are a lot of documents. There's a lot of information online. So if you do your homework or if you even ... Like with us, we do paid consultations. For us, it's a $300 fee. But if you pay the $300, you can sit with an attorney, ask questions to make sure you don't do anything wrong. But if you choose to do it all on your own, even on our website, we have information. There's information out there. But do your homework because you don't want to do it incorrectly.
Leh Meriwether: Because what'll happen is you'll take time off from work. And you will show up to court, and then the judge will say, "I understand the two of you agree to this, but there's several things that are missing that I'm required to make sure in these documents pursuant to Georgia law, and I can't advise you directly on what ..." Sometimes the court may say, "These things are missing," but they can't say how to put them in there. So then you've lost a whole day of work. And it's usually worth it to hire an attorney just to meet with him for a consult, go, "Did I do everything right? Have I checked every box?" And then you go to work ... You go to work. You don't waste a day off of work, and you get in there, and you get it resolved one time in front of the judge because you know what to do.
Todd Orston: Okay. All right. There's another question here. It has to do with custody also. Like you said at the beginning, a lot of these have to do with custody today, but-
Leh Meriwether: I might circle back around because the final question was, "How do we do this?" You can go on the ... Lot of county websites have on them the form paperwork on how to do legitimation. Our website actually has a ... I think ... I know we do for the divorce. No, actually I need to double check that. But for divorce, we've got-
Todd Orston: Would've been good if you did so before the radio show. But whatever.
Leh Meriwether: But I know for divorce we have the free county forms. So if you went to AtlantaDivorceTeam.com and searched for forms, you'll find-
Todd Orston: We have links there to ... Or we have a lot-
Leh Meriwether: [crosstalk 00:07:39] actually link you to all the counties, so you can get those forms online, print them, and then fill them out and then file them with the court.
Todd Orston: Yeah. And again, it's not complex. So if you're working well together with the other parent, can you ... If the question were posed to me, "Can we do it on our own?" the answer has to be yes. But if you don't educate yourself, if you don't do the homework to really understand what needs to be done and how to do it correctly, you might do it incorrectly. And sometimes I've seen that process take two times, three times, four times as long because mistakes are made and the court won't accept your paperwork.
Leh Meriwether: Right. All right, so, "Which document should I file for shared custody?" So the question is, "My child's father and I never married." It sounds like they've been split-caring for him. "He signed the birth certificate, paternity affidavit, and acknowledged he is the father for shared custody. Do I file a civil suit, or is it family court even though we aren't married? Which form would I fill out? I just need to know which to file? We don't necessarily have to be seen in court if it isn't needed." So it sounds like another situation where the parties are in an agreement with things, but they just don't know what to do to make it formal.
Todd Orston: Right. And the good thing in Georgia is there aren't multiple courts that you have to go to. You're gonna file in the superior court, and basically you'll file a petition for custody. And you can deal with all the custodial issues in that case. So it's one action. You file it with the court. And then you can deal with the issues of custody. Now, even though he has signed, sort of like what we were talking about before, he may have signed some documentation acknowledging paternity, and basically there might be even a component that both of you agree to legitimation.
Todd Orston: In Georgia, that's not good enough. So you would still need to file your petition for legitimation. Now, part of that legitimation petition, again, you can also at the same time try and deal with the custody issues, the child support issues. But all of this does need to be filed with the court. And once-
Leh Meriwether: Right. So you file the petition for legitimation. Well, the dad has to file that. And then mom can do what's called acknowledge service of it so she doesn't have to have a sheriff come out and serve her. And then mom and dad need to pull up a parenting plan and put in that parenting plan who's gonna have the custody of the children when, and how are they gonna handle disputes over legal custody, like the four main areas: extracurricular activities, healthcare, education, and religious concerns. So you make an agreement on that. And then you have to do child support worksheets and a child support addendum, and then the last document is a final judgment for the judge to sign. And then the judge incorporates those documents we've been talking about, those consent documents.
Leh Meriwether: So up next, we're gonna get into a really good question, "Can I legally keep my kids from being around my ex-wife's stepson?" who apparently was watching pornography.
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 on The New Talk 106.7. If you want to read more about us, you can always check us out online at AtlantaDivorceTeam.com. And today, we're getting into Q&As-
Todd Orston: Q&As.
Leh Meriwether: ... all kinds of questions that we have come across at various points in time. And a lot of these are publicly-asked questions. So we have decided we will answer them-
Todd Orston: Yeah. As a firm-
Leh Meriwether: ... some of them.
Todd Orston: ... we do this day in, day out. People call us with questions all the time. And we do our best over the phone. We do our free phone consults with people where we do our best to direct them, to give them as much information as we can in the context of that call. But that's one person getting the answer. And we know so many of these issues relate probably to a lot of people, meaning it's something that many, many, many people are probably dealing with. And, therefore, some of these shows that we do, you and I we've talked about this, we feel that we need to get some of these questions out there so that more people can benefit than just the one who calls and asks the question.
Leh Meriwether: Right. All right, so this next one's a good one. "My ex is remarried and has two stepchildren, who live in the house with my two kids. We have joint custody. Her stepson was recently caught watching porn, including kiddie porn. I don't feel comfortable with my daughter and son being around her stepson. I've asked that my kids go to her house when he isn't there. And first she said it was okay. But now, she's changing and making excuses for her stepson to be there and saying she feels it's okay for the kids to be around him because she has talked to him, and he will be seeing a therapist. I don't know what the laws are and if I have a legal right to not allow my kids near her stepson."
Leh Meriwether: Tough situation.
Todd Orston: Yeah. There's a lot to unpackage there, because unlike some other situations, here we're talking about the prospect of criminal violations and major criminal violations.
Leh Meriwether: If it really is child pornography.
Todd Orston: Exactly. If it's child pornography, then we're talking about felonies being perpetrated by this child, which means that at some point, the police could get involved. And then we're talking not just about a custody issue, but we're talking about criminal prosecution. Even if ... Or rather, let's put it this way. In either situation, is there a legal right to prevent your spouse's child from being near your child? The answer is no. What that really comes down to is your relationship with your spouse and what you and your spouse can agree upon. My opinion is that unfortunately there's nothing you can file to just keep one child away from another. If-
Leh Meriwether: Well, with one exception.
Todd Orston: Yeah, well ...
Leh Meriwether: We'll get to that in a minute.
Todd Orston: We'll get to that in a moment. Really in my mind, what you have here is a situation where it's a serious issue. And if you can't reach an agreement with your spouse to keep that child away from your children, then absent going to the police and turning that child in for the child porn or going to [DFCS 00:14:52] and bringing it to the attention of DFCS, who might then put a protection plan in place that would involve no contact or no contact with children period, it becomes incredibly difficult to accomplish anything other than literally just breaking down this marriage, you moving one place and your spouse living somewhere else with their children.
Leh Meriwether: Mm-hmm (affirmative). No, I think, but they're already divorced.
Todd Orston: Yeah I apologize. Yeah, right.
Leh Meriwether: So it's his ex-wife.
Todd Orston: Got it, got it.
Leh Meriwether: So they already have a parenting plan in place. But she's remarried, apparently, and her stepchildren are now around. So-
Todd Orston: Right. So in that situation, yeah, you can file a modification of custody to try and keep your children away from just-
Leh Meriwether: The stepson.
Todd Orston: ... the stepson.
Leh Meriwether: Yeah. Well, first off, do we really know if it was child pornography? I mean that's-
Todd Orston: No, we don't.
Leh Meriwether: Because in our cases we've had dealt with over the years, cases where there was an accusation of child pornography, the FBI actually did get involved. And it turned out there ... And the only reason I know about this is because of the cases. I'm trying to be clear on that. But there are certain we'll call them actresses that are in their 20s that look like they're 13 and 14. So it definitely looks like child pornography but is not.
Leh Meriwether: But regardless, you've got a 13-year-old boy. You have a curious boy who's probably just hit puberty. And he has found something on the web. Gosh, in some respects, you hurt, you feel for this child. And at the same time, you understand the question or the dad why he would be concerned. I think the first, it sound like he made the right first step, reach out to her, talk to her about it. Now, she's saying this. Go back to her and say, "Look, I'm just not comfortable with this. What other steps do you have? Because just him seeing therapy isn't enough."
Leh Meriwether: But maybe she would say, "Okay, well, I've got now in place I bought Circle." That's an example. There's a lot out there. I think you had a different example, too. But I think Disney owns it. And you can set it up, and it blocks most of the inappropriate content out there. And you can even get a VPN so if the child has a cell phone, he or she can't switch to a cellular signal and try to get around the block from the Circle. So you put a VPN on it. And that will provide a level of protection for his kids when they're over there knowing that he's not gonna be looking at this.
Todd Orston: Yeah, but as with so many, for lack of a better way of putting it, vices, if somebody wants to engage in that behavior, they will. So in this situation, it really is difficult on so many levels, because I'm sitting here going, okay, so maybe you can protect against the 13-year-old child looking at porn while at that house.
Leh Meriwether: Right.
Todd Orston: Okay? But that doesn't stop anything happening outside of the house. That doesn't stop the child from engaging in other behavior to try and get their hands on another phone or some other means of looking at the things. But-
Leh Meriwether: But as long as it's not inside the house when, only in reference to his two children.
Todd Orston: Right. I get that. But, see, here's the problem. The problem I have is, okay, let's say it is kiddie porn. Just because you're controlling it in the same house doesn't mean that I feel safe. Like if you said to me, "This child is gonna be around your daughter." Okay, fantastic. By the way, outside of your house, this child watches porn 27 hours a day. I'd be-
Leh Meriwether: That's impressive.
Todd Orston: It's very impressive. It's-
Leh Meriwether: Three more hours [inaudible 00:18:46].
Todd Orston: So would I be comfortable just putting blocks in my house to prevent being able to watch porn while in my house? No. I'd still be sitting there going ... That'd be like saying, well, yes, this person smokes heroin, but never in your house. So don't worry. I'd be like, "Well, wait a minute. No. I'm still concerned."
Leh Meriwether: So let's turn to the law. So the only time a court can limit who is around the children when in some parent's custody is when a specific person poses some risk, and I think it was physical harm, I'm speaking strictly of Georgia law right now, but poses some sort of physical harm to the child.
Todd Orston: Right.
Leh Meriwether: So a court they may do things where they start off with something like I recommended. Well, as long as there are safeguards in place or the child can't access pornography while when the children are in the presence of the stepson, the court might start there, might not actually change custody, but start there.
Todd Orston: Now, I will say, if it's child porn, courts are gonna take a much different view. If you have a situation where a child is occasionally looking at pornography and there's nothing illegal about that pornography, more than likely putting those safeguards in place will be enough in the eyes of the court. I'm not speaking for any judge in particular, but probably. If it's just hours and hours and hours and maybe even dips into the illegal, the court's gonna take a much different stance on that.
Leh Meriwether: Right. So it's very factually dependent.
Todd Orston: That's right.
Leh Meriwether: And is it something where a counselor comes in and says, "Child was curious, went to the wrong website"? Because I've seen that happen before where the child said, "I got on this website. I didn't know what I was getting on. And I got off of it."
Todd Orston: "And it took me seven hours to get off of the website."
Leh Meriwether: No. But that can be a scenario where you could say, okay, this kid was curious, went hit the wrong button, went to the wrong website. And as long as the mother is following these certain safety protocols, it's gonna be okay.
Todd Orston: When DFCS gets involved, oftentimes, that's what they do. They put a safety plan in place. So, yeah, I agree. As long as certain-
Leh Meriwether: But I [crosstalk 00:21:17] ... And I do know ... I'm sorry for interrupting you-
Todd Orston: No, you're fine.
Leh Meriwether: ... because I am aware of a very delicate situation as well. And in that situation, when the juvenile court system did get involved, and they asked for one child to be removed from the home. So it depends on the nature of what's going on.
Todd Orston: Yeah. Well, you said it before. It's very fact-specific. And depending on the kind of behavior, you're right, I've seen courts take very strong positions where children are removed. And I've seen others where they're comfortable with a safety plan that doesn't remove the child but hopefully puts safeguards in place to prevent bad behavior in the future.
Leh Meriwether: Yeah. Either way, whenever the courts and/or lawyers get involved, it gets very expensive. So hopefully it's not a worst-case scenario. But up next, we're gonna get into guardianship issues and what could people do to keep children that they're taking care of.
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 on The New Talk 106.7. If you want to read more about us, you can always check us out online AtlantaDivorceTeam.com. And today, we're hitting some questions with answers, and asking more questions ...
Todd Orston: That's more confusing than some of the questions. I don't even know what we're doing anymore. We're hitting some questions with answers that have questions that we're gonna answer with questions.
Leh Meriwether: I did that on purpose. I was trying to confuse you.
Todd Orston: And you did a good job. See, once again, I'm saying positive things. Leh, you are so good at confusing me.
Leh Meriwether: Sometimes I actually write out the plan [inaudible 00:23:23]. No, but seriously, we've got some questions that we have come across where people are struggling with some very difficult situations, mainly focused on child custody. We got a situation where there was a child in a home that had been caught looking at pornography. There was a concern there was also child pornography involved. And what do you do if your children are over at that home? That was in the last segment. And up next, we've got a really good question.
Leh Meriwether: So I'm gonna summarize here because sometimes these questions can go on and on. And sometimes not always written in the best English. But in this situation there was a child who's ... The child's currently 17 months old but for the past nine months has lived with this ... Sounds like basically a mom stepped in to be the mom. And the thing says the mother signed the forms, left, and went to another state. Then apparently while she was in the other state, she got married. And she's coming back wanting to take the baby back with her. "I have raised her more than the mother, who fraudulently got food stamps," and something else. "Will she be able to get the child back?"
Todd Orston: All right, so here we're talking ...
Leh Meriwether: Do you know what the other thing was?
Todd Orston: I have no idea. So we're gonna pretend like that isn't-
Leh Meriwether: Just food stamps.
Todd Orston: Absolutely. Food stamps. And really I'm not gonna say that's irrelevant. But guardianships, once temporary letters of guardianship are basically authorized an order by the court, what you're doing is ... So in this situation, the mother of the child stepped away, did the responsible thing, and said, "You know what, I am not in a place right now where I can provide a level of care for my child," and formally through a court action allowed someone else to step in and take on that role and responsibility. In Georgia, the way it used to be it was a lot easier for the biological parent to step back in when they were ready and petition the court to terminate the guardianship.
Todd Orston: And really for most of the time, I mean absent really horrible circumstances, the guardianship would be terminated. It's gotten a little bit harder, if not a lot harder. The court is gonna consider the best interests of the children and will determine whether or not it would be in the child's best interest to terminate that guardianship.
Leh Meriwether: And there's another factor that I understand changed recently, too, is that it used to be has there been a substantial change in circumstances relating to the mother? Now, the question is there a substantial change in circumstances relating to the child, which changes the standard drastically.
Todd Orston: Absolutely.
Leh Meriwether: So the big question I think from this question is, did she obtain a permanent guardianship order from the court, or did this mom, the biological mom sign temporary guardianship, which is just a form, to the one who's acting as the mother? Because a temporary one can be terminated at any time. But the permanent one that a court ... I think permanent guardianship is kind of a misnomer because it can be removed. But that's just the title here in Georgia. So the permanent guardianship you gotta go to court for. So if that's what she has, no, she can't just come and pick her up. She's gonna have to petition the court.
Todd Orston: Yeah, and I will say, looking at the timing, I'm not immediately moved by the amount of time, the duration of time that the mother, the biological mother's been gone, because we've seen cases where it's years. Here it's less than a year. It is a number of months. And I'm not taking away from the fact that, thank goodness, that grandmother or whoever that is was able to step in and provide this care for this child. So that's wonderful that that happened. And I know it's a burden. I mean I have kids, you have kids.
Todd Orston: But at the end of the day, it's not too much time. Like if this were five, six, seven years later, if someone was sitting in front of me and they said, "What are the chances of undoing this guardianship?" I would say not real good, because I think if there's been no contact for a long, long, long period of time, it's gonna be a really tough sell to the judge to convince the court that it would make sense to then uproot this child who has been raised in this family and go back with a parent that really they have no contact with and they really don't know at that point. So this amount of time it doesn't really bother me legally speaking, meaning I don't think that would stop a judge from at the very least putting together what's called a reunification plan to try and get the mother basically reconnected with the child.
Todd Orston: And at this early age, it probably won't take very long. But it may not be a Monday with you and Tuesday with the biological mother. It may be exercise some weekend parenting time for a period of a month or two, and then allow the transition to happen.
Leh Meriwether: And again, this is something that's very factually dependent because not only the length of time is an important factor. But how old was the child at the time? Because the court could easily say, too, well, this mom did the right thing originally. Let's say the child was five or six and had bonded with mom, but mom just couldn't care for the child, and then didn't completely disappear from the child's life, but came really got herself together several years later and then came back to the court.
Leh Meriwether: In that situation ... And I say this because I know people that are foster parents. And there have been many times when the children they were in a much better situation with the foster parents than with their real parents. And these children went from, "What's a Christmas present?" And then all of a sudden they're with these new foster parents, they get Christmas presents. They get three square meals a day. And they didn't have that. But when their parents got out of jail, the foster children wanted to go back to their parents. So there's that element there that, hey, look, they want to be with their parents. And you may be removing them of that chance.
Leh Meriwether: So obviously it's factually-dependent. You don't want to send a child back into a horrible, horrible situation, a deplorable situation. But maybe it's not so bad. Maybe it's not the best situation. But they're living in an apartment, they have a steady job. Don't just think about the child's physical needs, but also their emotional needs. So that's something to consider.
Todd Orston: All right, let's go on to the next question. "How do I move forward with an emergency custody hearing?" And there's a pending case and basically there is an emergency hearing pending. So the question is really, okay, dealing with what kind of issues to bring up, issues and allegations relating to the other party's mental instability. There's an allegation or this statement goes on to say that, "There are messages that were sent to me regarding her not eating while she was pregnant to punish me as well as the fact that maybe the other party was molested when she was younger." And that person who perpetrated the molestation frequently watches the child.
Todd Orston: We've seen that before where it turns out that a grandparent molested their child and now is babysitting a grandchild. So basically the question is, and it goes on further, but I don't think I have to go into all those details because the real question here is, okay, if I'm gonna handle this on my own, what kind of things are gonna resonate with the court? Tell me if I'm not summarizing. I'm gonna do this on my own. What facts and what evidence is really gonna resonate with the court? What is the court gonna be looking for in an emergency custody hearing?
Leh Meriwether: Well, they're gonna look for ... And especially if it's a temporary hearing because that's a challenge. You're trying to change custody on a temporary hearing. You've got to have some pretty extreme facts for a court to do that. Sometimes individual facts by themselves, they're like that by itself, not enough to change custody. But when you start adding together all bunch of facts and they start just sounding strange, like her trying to get back at him for something, I'm not sure ... She could be lying about, "Well, I just didn't eat during my pregnancy," just to make him feel bad. It could be a complete lie.
Leh Meriwether: But if you look at a bunch of other statements that go, okay, this just isn't making sense, now you start to get a picture, because we've had that happen before where when you combined a series of text messages, emails, and statements and behaviors, there was no rational coherence between them. And the judge looked at all those factors and said, "Yeah, I'm changing custody on a temporary basis, and I'm appointing a guardian ad litem to investigate these claims more closely.
Todd Orston: Yeah. And remember, in any kind of case in any court proceeding, it's not what you think, it's not what you feel. It's what can you prove. So if you have emails and it relates directly to a parent's ability to take care of a child, then yeah, that's good evidence. Allegations that somebody may have done something 20 years earlier, that may not be something you can either prove or something that would really resonate with the court and move the court.
Leh Meriwether: And up next, we're gonna dig into this just a little bit deeper.
Leh Meriwether: Todd, while we're on a break, let's take a moment to speak just with our podcast listeners.
Todd Orston: Great idea, Leh. First, thank you for listening. If you're a client of ours, thank you for taking the time to educate yourself. It really helps us help you.
Leh Meriwether: And I wanted to thank those that recently took a moment to review our podcast. We really appreciate it. If you feel like you're gaining a value from the show, please take a moment to post a review. The reviews help others find the show, which allows us to help even more people.
Todd Orston: And if you're not sure how to post a review, our webmasters put together a simple explanation on our webpage. You can find it at MTLawOffice.com/reviewit. That's M, as in Mary, T, as in Tom, LawOffice.com/reviewit.
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 on The New Talk 106.7. If you want to read more about us, you can always check us out online AtlantaDivorceTeam.com.
Leh Meriwether: Today we're going over questions that we have found or received over the internet. And these are public questions. There's no attorney-client privilege. But there's no names in here. So we're going to some really challenging situations where people are dealing with some tough, tough situations when it comes to children. And we've talked about stepkids being around biological children when the stepchild has maybe looked at child pornography, and what can you do about it. We've looked over someone who is caring for a child and the biological mother suddenly comes back in the picture and wants the child back after nine months.
Leh Meriwether: And we left off talking about an emergency custody hearing where the father believes that the mother is suffering from a mental instability. And before we didn't get a chance to really hit something that was really critical I think when it comes to understanding the difference between an emergency hearing, a temporary hearing, and a final hearing. So, Todd, you brought it up on the break.
Todd Orston: They all have different words in them. Is there more to it than that? All right. So there is actually a big difference. Usually with most judges, if you are I don't know whether to call it lucky or unlucky enough to petition the court and have them deem something to be enough of an emergency that they give you an emergency hearing, which usually you can get that expedited, because if you can prove to the court there is a true emergency that requires the attention of the court immediately, then they will put you above other cases that may be ahead of you, meaning-
Leh Meriwether: In time.
Todd Orston: ... in time, and say, "Okay, yeah, yeah, yeah. I want to hear that issue." So understand that if you're going in on an emergency, typically what the court wants to hear is what is the emergency? They don't want to hear about all the other things that might be more relevant in a temporary, in other words, from now until when we finalize this case, what is custody gonna look like? That's not an emergency. You have a need to resolve that. But it's not an emergency.
Leh Meriwether: Like one of the factors in here was she's refusing to take her daughter to therapy. Well, that's not an emergency.
Todd Orston: Right. That would be of a temporary, unless the mental issues are so severe that without that therapy, bad, bad, bad things could happen. Grandma, I don't like grandma, and grandma's babysitting our child, that's not an emergency. Now, grandma likes to eat children, and I don't want my-
Leh Meriwether: I would hope the police would get involved [inaudible 00:37:33].
Todd Orston: That might be an emergency. But jokes aside, when you go into court, the court is gonna want you to be laser-focused on what is the nature of the emergency.
Leh Meriwether: Emergency, yep. And I've even seen where, I've seen in court one time where the emergency was mom was drinking and driving with the children. So the court granted an emergency hearing. And it was a short window, too. The court only gave I think two hours for this emergency hearing. And what was presented in court was a video of mom drinking and then getting in the car and driving and picking up the children. She was swerving along the way. And the court found that it was alcohol that she was drinking.
Leh Meriwether: But the court said, "Look, this is an emergency. Here's what I'm gonna do. Mom, you have to get ... Dad's gonna have temporary custody." But that doesn't fix when she's visiting. So mom has to get a, what is it, a ignition lock, where basically you have to breathe into a breathalyzer, and that will unlock your car. She had to get that. And once she got that installed in her car, she can have custody back. But then we we're gonna have a temporary hearing to address whether that's even-
Todd Orston: [crosstalk 00:38:41]-
Leh Meriwether: ... like is that a long-term solution?
Todd Orston: Right. And that's a great way of putting it, to deal with it in terms of a more long-term solution, okay. But at that hearing, the court was like, "Okay, the problem is mom drinking and driving. We're gonna put a stop to that. Put this on the car. You can't drink and drive. The car won't work. That resolves the issue from now until we have a temporary hearing." Now, at that temporary hearing, would the drinking and the driving and all of that come back up? Absolutely.
Todd Orston: And you the other parent could then argue to the court that, "Look, we had to come to court on an emergency because she was doing this and engaging in this behavior. And the only reason she's not doing it is because this court took steps to protect the children. I'm asking for custody. I'm asking for her to not drive with the children because even though there's an ignition lock, okay, what if she drives another person's car? I don't want her driving with ..."
Todd Orston: And the court might at that point-
Leh Meriwether: The court did address all those issues at the emergency hearing.
Todd Orston: That's right.
Leh Meriwether: All right. Well, I think that was an important point. So last tip I would give to this person that's getting ready to go to court is, because he says, "I can't afford to hire a lawyer full-time until February." At least get together some money for a consultation, like we keep saying. Go in there. What should I focus on? Most lawyers will be able to sit down with you and go, "Okay, here's what you do when you walk in. Focus on these factors. These things are side issues the court's not gonna care about. They're gonna care about it, but not for the purpose of this temporary hearing, or emergency hearing."
Todd Orston: Yeah, too many people think of it as all or nothing. I'm either hiring an attorney or I'm not. Please understand, and this is not me trying to drum up business for our firm, go talk to an attorney. If you're-
Leh Meriwether: And this is in any state.
Todd Orston: In and state anywhere. That's right. This is not legal advice. This is just life advice. Go at least speak to an attorney. Spend the time and even the money to spend a short period of time to be able to ask very good, pointed questions on whatever the issue is you're dealing with, because if you're gonna have to or want to handle things on your own, you need that help. If I'm gonna try and do some plumbing work in my house, at the very least, I'm gonna call a plumber and say, "Hey, what tools do I need? What pipes should I use? Okay, I'm try and do this ... And, by the way, be around in three hours when I call you and my house is flooding."
Todd Orston: But engage with that attorney. Create that relationship so that if things go sideways, you can call and get the help that you need.
Leh Meriwether: Exactly. All right. I think we have enough for maybe one more.
Todd Orston: All right.
Leh Meriwether: "I have a warrant in Georgia for children support, and I have a purge of $3,400. How do I get this warrant lifted?" So apparently someone didn't pay their child support and I guess didn't show up to court. And the judge issued a warrant for the arrest along with a purge amount of ... So a purge amount is you may owe $10,000, but the judge says you can get out of jail if you pay $3,400. So sometimes it's the full amount. But I've seen the courts do a percentage of it. And, boy, we can't advise someone to avoid a court order.
Todd Orston: Yeah. Well, no. All right, so there's already a warrant that's been issued. The good thing is there's a purge amount. Sometimes there's not a purge amount. Sometimes it is you are-
Leh Meriwether: You're going to jail.
Todd Orston: Right now, you need to go to jail, and then we'll deal with whatever the issue is once you're in jail. But then it comes down to I would look at whatever order was issued, because there should be an issue ordered issued by the court requiring or requesting that this warrant issue and in that order, hopefully there are other terms that the 3,400 would be the purge amount and also payment.
Leh Meriwether: And who to pay it to.
Todd Orston: Exactly.
Leh Meriwether: Yeah, because usually it's the sheriff's department.
Todd Orston: That's right. It can be paid to the registry of the court. And basically you need to follow those rules. So if you bring $3,400 cash, don't do it, to the other party, okay-
Leh Meriwether: Don't do that.
Todd Orston: ... but even if the order said just pay it, it didn't say anything specific, don't pay cash. At the very least, it would be a check or a money order would be the best thing, certified funds. But it might say, "Pay it into the registry of the court." And if you give the other party directly a check or cashier's check-
Leh Meriwether: That's not gonna eliminate the-
Todd Orston: That's right.
Leh Meriwether: ... warrant.
Todd Orston: But at that point, at the very least, and this is really one where you should hire an attorney, you should at least have someone then contacting the court saying, "It's been paid, $3,400. You can see the funds are sitting with the court right now." And then that attorney can then reach out to the court and basically petition the judge to withdraw that warrant.
Leh Meriwether: Right. And sometimes it says you have to pay it to the sheriff. You need to read the order. And you can contact the sheriff's department and say, "If I send you a check for $3,400, will this warrant be lifted?" So sometimes the sheriff might say, "Yes." And sometimes I've seen it where the sheriff says, "You have to report," because what may happen is the court [inaudible 00:43:59] you ... And that's what we don't know, because it depends on what's in the order. But we've seen situations where the court's like, "Well, I want you to experience this having to get checked into jail."
Todd Orston: Sending a message.
Leh Meriwether: It's sending a message. So you've got the warrant doesn't get lifted until you actually report, you are processed, and then you'll be released. Now, that may take three, four, five hours. But read the order, contact the sheriff's department, say, "I have my purge amount. If I send it to you, will I still be arrested?" They say, "Well, we still need you to come in and be processed."
Todd Orston: Well, and also, I just gotta say this, though. You might talk to one sheriff deputy who says, "Everything'll be fine if you pay the money." And then you show up and you're like, "Paid the money." And that sheriff deputy says, "Thank you. Come with us. And-"
Leh Meriwether: This is true.
Todd Orston: "... you're in jail." That's why really in my opinion, you're gonna want to, A, read the order and, B, contact the judge to see what needs to be done to have that warrant withdrawn.
Leh Meriwether: Yeah, exchange. All right. Well, that about wraps up the show. Hey, thanks so much for listening. If you're really enjoying the show, we would love it if you could go out and give us a review. You can find ways to review us on our website at MTLawOffice.com/reivewit. Well, of course we only want five-star reviews. But ...
Todd Orston: Six if you can fit another one in there.
Leh Meriwether: Yeah, if you can. Hey, everyone. Thanks so much for listening.
Speaker 3: This audio program does not establish an attorney-client relationship with Meriwether & Tharp.