Episode 136 - Family Law Questions and Answers
In a continuation from last week, Leh and Todd answer questions that have been anonymously submitted. This week they focus on general family law questions that do not focus on divorces. The questions answered include: 1) What do grandparents need to legally take care of a grandparent, 2) how to handle an ex-husband who fails to pay weekly child care; 3) when can you file child abandonment; 4) when can a father’s rights be terminated; 5) when there exists a conflict of interest for a lawyer in their representation; 6) can child support be reduced if the father has a new child; and 7) Is it trespassing if the wife’s boyfriend walks into the marital home without permission?
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 and Tharp, and you're listening to The Meriwether and Tharp Show. Here you will 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. Also, if you want to hear past episodes, you can go to divorceteamradio.com. And, I got one more, if you want to leave us a question, you can use WSB's open mic feature. This is something that we started last week, and you just go to WSBradio.com or download their WSB Radio App, and you can go to the open mic feature and hit record and leave us a message or question.
Todd Orston: I've got one, and if you want to stop listening to Leh, you can press the mute button.
Leh Meriwether: The mute button.
Todd Orston: Mute point. Oh, darn it. Darn it.
Leh Meriwether: The mute button.
Todd Orston: Oh, all right.
Leh Meriwether: You just made that up.
Todd Orston: I know. I know. Just let's get on with the show.
Leh Meriwether: All right. Well, like last week, we are answering questions, but unlike last week, we're going to answer some different questions. Last week they were divorce-focused. This week it's kind of a smorgasbord of family law. I was just looking for a reason to use that word.
Todd Orston: Invariable cornucopia of legal issues.
Leh Meriwether: Yeah, that's right. So let's get started.
Todd Orston: Yeah, what do you want to start with? Guardianship.
Leh Meriwether: Guardianship.
Todd Orston: All right. How about this one, "I have my granddaughter and a notarized letter from my daughter to care for her. Is that all that is required for me to care for her? My daughter has four kids and has left the state. I have my teen granddaughter and a notarized letter to care for her. Do I need any other forms for her school and medical needs?"
Leh Meriwether: Yes.
Todd Orston: All right. Next question.
Leh Meriwether: Well, for the school, they may have their own requirements, but as a general, you need at least a temporary guardianship letter, at least that for the school. Last time I checked, the temporary guardianship will suffice for a school. It's got to be more than a letter, but there's a form for it. But for medical issues, you need permanent guardianship, and it doesn't mean that she's giving up her parental rights at all. It just means she's giving you guardianship over your teen granddaughter so that you can make medical decisions. So you can put her on your medical insurance. And without that permanent guardianship, you can't do that.
Todd Orston: Yeah, and it's a formal process. You file the petition with the court. It is easy to do, especially if your daughter is cooperating with you. I mean, if everybody's on board that you are going to step into that role and take care of educational needs, medical needs, and what have you, you're going to go to the juvenile court in the county in which you reside. You're going to file a guardianship action there. That's going to be the easiest way to do it, and basically once you get that order appointing you as the guardian, then basically you can make those decisions. And you'll be able to communicate and work with these teachers and doctors, what have you. Now just understand once that's done, as far as Georgia goes, it's not automatic in terms of terminating the guardianship. So I don't know why this is happening. I don't know if it's simply because let's say your daughter wants to move but your granddaughter-
Leh Meriwether: Wants to finish her-
Todd Orston: Yeah, finish school.
Leh Meriwether: ... high school there.
Todd Orston: Right, exactly. Then it's probably a non-issue, especially if she's 16-17 years old because at 18, it's a non-issue.
Leh Meriwether: The guardianship will expire when she becomes an adult.
Todd Orston: But once it's done, it's not automatically undone. I mean, at that point, you either consent to it being terminated or unfortunately your daughter would have to go back to court, file a petition to terminate the guardianship, and if you don't agree with that, you could fight that.
Leh Meriwether: Yeah. So without knowing more, we can't tell you which way to go, but I do know that for medical insurances purposes, you got to have that permanent guardianship. It's really more of a temporary guardianship, but that's just the label they give it. At least here in Georgia.
Leh Meriwether: Okay. Child support legitimation question. "Can I as a father put myself on child support? I work for her family after the baby was born, and then she choose to leave because she said she wants to enjoy her life but now wants child support. I pay for all my daughter's needs and daycare, but she says it's not enough. Gave her the car, but I took her off my insurance. And I paid off our joint credit cards."
Todd Orston: Not sure I understand. I mean, let's put it this way, good for you for supporting your child. So first and foremost, that's fantastic. So the fact that you are voluntarily, meaning not pursuit to a court order, paying the mother of your child some money in the form of child support, and that's great. That's fantastic. But the comment was made, "But that's not enough."
Leh Meriwether: Mm-hmm (affirmative). For mom.
Todd Orston: For mom.
Leh Meriwether: Yeah.
Todd Orston: Right. Mom has two choices. Mom can either just complain and take whatever it is you're giving her, or she an file basically a petition to establish child support, a child support obligation. She could go to child support services, and they will jump in. And basically they will establish a formal child support obligation. It is not very common for the father to be the one to initiate that.
Leh Meriwether: Yeah.
Todd Orston: I'm not saying it's impossible. I mean, at the end of the day, could you contact child support services and say, "I'm the dad. This is the child. Here's the mom. Can you please contact the mom, and let's go ahead and get something set up." Possibly. I have not seen that. My recommendation to you would just be if you're okay upping the amount, up the amount. If you want to know exactly what child support would look like for you, go have a consultation with an attorney, give them all the data so they can run the numbers, run the worksheets, and they will tell you what child support should look like. And then if you want to do exactly what Georgia guidelines require, great, fantastic. You can then up or reduce your child support payment to her, and if she questions that, you can say, "Look, I ran the numbers. Here's the worksheets, and I'm just doing exactly what I expect a court would do if you were to file a child support action."
Leh Meriwether: Yeah, I notice one other thing in here was, "We're not sure..." I put in the title legitimation. I'm not sure if he's legitimated or if they were married, that part was not part of the question. But if he hasn't legitimated, I would. If he wants to establish it, I say establish everything. Create some boundaries for parenting time, for child support because one of the key factors he said in here was he works for her family. And what you don't want to do is upset her and then get your employer upset at you. So if you go through the court and she's complaining to her family and her family comes to you say, "Hey, look. I followed Georgia law. I did exactly what I'm supposed to do under Georgia law." They're going to have a hard time getting mad you if you followed the law. If you set those boundaries and she tries to break those boundaries, most... I mean, on blood stick or in the water obviously. But most families are still going to, depending on the family, are going to say, "Hey, look. He's following the rules. Why are you getting so upset?" So that would be my recommendation.
Todd Orston: Absolutely. All right. Next one, "Georgia court ordered my ex-husband to pay weekly child care, yet he is refusing. Can something be done immediately? He sent a cellphone with our nine year old son, which I don't agree with, and he and his wife track the location on the phone. He constantly calls and texts throughout the day, calls at night. There's a 9:00 p.m. cut off in the court order, so I turn the phone off. The phone stayed off a little too long, and he got very upset and basically he says he's not going to pay the child care until he takes me back to court for turning the phone off. This is hindering me because I work full-time. We have a five year old that goes to daycare for the summer. He also won't pay for our son to go to camp, so I rely on family. I live paycheck to paycheck, and he does this every week, paying late, causing late daycare fees, or threatening not to pay at all. This also goes for monthly child support, once causing me to almost be evicted because he paid late, and I had to cover the additional costs. He threatens his attorney," meaning I'm assuming legal action by his attorney. "Yet, I've never received a phone call from them. He's required to provide their insurance. He hasn't done so."
Todd Orston: Let's see, "When he decides to get the kids, he's never on time nor does he drop them off on time. It's causing me stress, risking me losing my job. I can't afford an attorney. What can I do?"
Leh Meriwether: Well, there's a few options. One is you can go to child support services. The problem with child support services is as long as he's within his 30 day window, they're not going to really do anything. If he's falling beyond the 30 days, they could do something. They could suspend his driver's license, that sort of thing. The problem is I don't know how the daycare is covered. Is it part of the child support payment or was it outside of the child support payment and just put somewhere else in the agreement that he was going to split that cost with you? That can create a problem. If you were to hire an attorney, which I know she said she's limited on funds, I would go back to court to redo this agreement and to redo the agreement so that we do an income deduction order. So it comes right out... If he's employed, every time he gets paid, you get paid. He can't play that game anymore. And that maybe what he needs to do. And child support enforcement, if you went to them, they could do the same thing. They could do a income deduction order requiring it to come straight out of the paycheck to them, and then they forward it to you. So that will be a good option.
Leh Meriwether: Up next, we're going to continue to explore 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 and Tharp, and you're listening to The Meriwether and Tharp Show. If you want to read more about us, you can always check us out online at atlantadivorceteam.com.
Leh Meriwether: All right. Well, at the last break, Todd and I were talking about this last question because there was so much more to it. I was just scratching the surface, and Todd actually had-
Todd Orston: Barely. No, I'm kidding. I'm joking. Sorry, that was too easy. So you were scratching...
Leh Meriwether: So the question... Todd asked a really good question on the break about... You brought up a really good issue about the income deduction order. So when I was talking about going back to court, I was talking about rephrasing or sort of reworking how the child support is paid because you can in Georgia now separate payments for daycare from child support. But you can also make daycare part of the child support payment. Then when you do that, then you can get an income deduction order for the entire amount.
Todd Orston: Right. And income deduction order, a lot of times people will call and they will say garnishment. I want a garnishment. All right. In essence what they're asking about is what we in Georgia call an income deduction order and usually there are terms if collection of child support, payment of child support is not done through an income deduction order at the onset, you by Georgia law have a right to get child support paid through an income deduction order. There maybe some aspects of the original agreement or order that say at what point you're going to go back and do that, but the bottom line is you have a right to it and you would go back to court. It's an order that then wants it's signed by the judge, gets sent to the payers employer and says, "This person owes $600 a month," and it'll now come out of that person's paychecks. So that's what an income deduction order is.
Todd Orston: So yeah, I agree with you that if things are being handled separately, an income deduction order is not going to help with the daycare. It's going to help with the normal child support. But this person is, she's unfortunately struggling because he's playing games with anything and everything he can. Whether it's late paying the child support or not paying the daycare expenses or who knows what else. So if that's the case, really what you're talking about is also a contempt. There maybe a modification component like you're talking about where you can solidify or not solidify. You can strengthen the language regarding his payment obligations. But if he's not doing what he's supposed to do, you also may have to contemplate a contempt because it sounds like there's clear language that says he's supposed to do it. He's not doing it. He should be able to do it. He's just doing it willfully and therefore you might be able to file a contempt, and the court will then deal with some of these issues in the context of that contempt.
Leh Meriwether: And so one of the other issues was having to do with this phone. It sounds like he was threatening a contempt action because-
Todd Orston: One thing had nothing to do with the other.
Leh Meriwether: Yeah. They have nothing to do with the other. They're not defenses to the other. "Well, I'm not going to pay the..." In fact, that actually really irritates the judge. Say, "I'm not going to pay for child care since you didn't turn the phone on."
Todd Orston: Let's put it this way, if the person who is saying that is listening, change that argument. I am recommending do not use that argument in front of a judge. It will not fly. So yeah, the court... Basically what the court would say is child support is child support, and the terms of this order are exactly what the terms are, meaning if it says to pay X amount on X date, you better do that.
Leh Meriwether: Right.
Todd Orston: Because that's my order. That is what I the court have told you you need to do. So by not doing it, you are basically looking this court in the face and saying, "I don't care that you told me. I don't got to." Well, you got to. So if you don't want to do that, just get ready for the sanctions that are going to be coming when a contempt is followed.
Leh Meriwether: Not to mention the judge will say, "Fine, you don't want to. I'll make it by doing an income deduction order."
Todd Orston: Yeah. More than likely under those circumstances, you'd be looking at far more than an income deduction order. There's going to be sanctions of probably fees for the legal fees by the other party and maybe even more. If it's really that blatant, I would hesitate to say that you're going to go to jail. But it depends on how blatant it is. You'll probably get a warning, and if you keep doing it, absolutely jail is an option.
Leh Meriwether: Yeah. It's usually a pattern. If the court starts seeing a pattern-
Todd Orston: That's right.
Leh Meriwether: ... that's when they'll get irritated and have some sort of further sanction.
Leh Meriwether: Child support services, you still might not get it on time. But they have other remedies. So if you're limited, if you can't afford to hire an attorney or at least seeing if you can borrow some money to at least do a consultation with a lawyer and see if child support services might be your best option or not.
Leh Meriwether: Here's the next one. "Would it be best to file for child abandonment? My daughter's father is currently $20,000 in arrearage for child support. It has been three years since I've seen him or had contact with him. I've talked to my local DFACs numerous times on getting a court date with no success. I was told that the child support laws have changed and that he must give the noncustodial parents ample opportunity to make payments moving forward and that the court dates are now a last option. My case has been enforcement for over two years. I feel as if filing child abandonment is my only option now."
Todd Orston: So child abandonment is usually a tool used when child support has not been established, and so somebody has never been put on child support. They refused to provide any level of support for a child. So somebody can go to court. I can't remember if it's 30 or 60 days, but have not provided material support for the support and maintenance of a minor child during that period of time, then you can file this child abandonment. You can obtain a child abandonment warrant. It is not automatically a criminal matter. What ends up happening is the payer, the person who should be providing support, is then served with that and given an opportunity to come to court. When they come to court, they will be given an opportunity to put themselves on child support or be put on child support so they can start to materially provide for the minor child. If you say, "I'm still not going to do it," then it becomes a criminal matter. And then that warrant actually becomes a criminal charge that can be brought against you for child abandonment.
Todd Orston: In this kind of a situation, if there's already an order and I can understand. I'm not throwing stones at child support enforcement. They are dealing with a lot. They've got a lot on their plate. My advice is don't go through them. File a contempt action. Go into court with all the data necessary to show (A) what was supposed to be paid, (B) what was actually paid, (C) what efforts you made to force compliance, and if you have all of that data in an organized way, you file that contempt and trust me, the court can deal with a lot of these sames issues. Meaning in terms of forcing compliance, the court will threaten jail time. The court will come up with a payment schedule. The court will do all of these things that you're looking to accomplish to force him to start paying you child support.
Leh Meriwether: Right. We're talking about private action for a contempt.
Todd Orston: That's correct.
Leh Meriwether: Because going through child support services, you have to follow their system.
Todd Orston: Now, the good thing about child support services is they do have their finger on different buttons in terms of things that they can try and accomplish like effecting someone's passport or driver's license and things like that. So there are benefits of working through child support services. But as this person describes, sometimes it's a very slow process.
Leh Meriwether: And what's not making sense here is she said that he owes $20,000. Normally the child support services can actually seize someone's tax refund. So I'm just wondering if he's either not filing taxes or maybe he's just unemployed. And even then, like a court may throw him in jail, but that's still not going to get you money. So there's a little bit more information there. I think it's definitely worth sitting down with a lawyer to go through. They're going to ask you specific facts and questions, try to get a little more information, and they'll let you know if it's worth filing a private contempt action. Because, like you said, in those actions a superior court judge at least here in Georgia can get a lot more aggressive enforcing the payment of those child support arrearages.
Leh Meriwether: She was right in that the law has changed, and the courts, especially dealing with child support enforcement, they're now encouraged to... I want to say that there's even a... They're supposed to try and help the person find employment if they're unemployed.
Todd Orston: All right. Let's start this one. We may not be able to finish it before we have to go into a break, but can a father's rights be terminated? "My son is six. I haven't spoken to his father since shortly after his birth. It's been over five years. I never filed for child support or anything. I was wondering if I could have his legal rights terminated since he hasn't seen, spoken to, or supported our son in over five years. He never legitimized himself. I understand he technically has no rights, but he could file at anytime and uproot our son's life and/or make him drop out of his summer activities to facilitate time with him regardless of what our son wants."
Leh Meriwether: Well, the problem is in Georgia, if he hasn't legitimated, there are no rights to terminate. That's the problem. The only exception is, that I've seen, is where another father is stepping in. So like a step parent adoption. So if this person had gotten remarried and the step parent said or the new father said, "Hey, I'd like to adopt this child." It's called a step parent adoption, and that will terminate from a biological standpoint.
Todd Orston: But you would still have to give that biological father notice.
Leh Meriwether: You have to give him notice.
Todd Orston: So it ends up in essence terminating that person's rights.
Leh Meriwether: Right. In that scenario. And we're going to continue to explore this question up next.
Leh Meriwether: Welcome everyone. I'm Leh Meriwether and with me is Todd Orson. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to The Meriwether and Tharp Show. If you want to learn more about us, you can always check us out online at atlantadivorceteam.com.
Leh Meriwether: All right. Well, today we're getting into Q&A.
Todd Orston: So going back to the question that was posed right before we went to a break, again, there's been no legitimation but there's been a concern about this parent just coming out of the wood works and just suddenly trying to establish legal rights. In Georgia, at least, what are the chances of that person actually being successful?
Leh Meriwether: I don't think they're very good. If this father has not seen the child or talked to the child or paid child support or done anything in five years, let's put it this way, knock on wood, every time I've ever had that situation and I represented mom, we have blocked the legitimation. The court found that the father had abandoned his opportunity to establish his parental rights.
Todd Orston: Yeah. I mean, what the courts going to look at is in terms of abandonment, because we've had people come in and it's been six months. Okay. The longer the period of time, the more likelihood that a court might see it as an abandonment, if you will. Six months, more than likely the court might put a reunification plan in place and say, "Okay. I'm going to give the person the benefit of the doubt." Five years, I agree with you. Most of the cases, if not all the cases that I've handled, that I've been a part of where that length of time has gone by with no contact or attempt to contact, and keep in mind they're going to look to see whether or not you have blocked contact. If it's been no contact because you've been in the wind and didn't let the person know, and that person comes in and says, "Here's 150 emails of me trying to find out where they lived," that's a different story. But if there's been no efforts at contact, I think the answer here is you don't have to worry about... First of all, you can't terminate because, like you said, there's nothing to terminate. And I don't think you really have to worry about you or your child being uprooted because that person, the father, won't have any chance I don't believe of successfully legitimating.
Leh Meriwether: And I've even seen a situation where I'm not sure I agreed with the judge's ruling, but there was a something similar where there was a step parent adoption that was attempted. And the person all of a sudden, they tried to claim that mom had prevented them from seeing the child. But they hadn't paid child support in two years. So the judge never terminated the dad's rights but said he could never see the child and still has to pay child support.
Todd Orston: Yeah.
Leh Meriwether: It was like there was a win and a loss at the same time. Our client would've been willing to give up the child support to be able to have this other person say, "I'm your dad."
Todd Orston: Yeah. I haven't seen or experienced with a client that situation. But I will say, and I think it's worth saying, that if let's say you are the father and... Again, let's say this person is listening to us. What I'm saying to that person is your rights might not be terminated because you have no rights right now. But guess what, just because there are no rights to terminate, you have an obligation for child support. You can be put on child support, and if you try to legitimate, you could be denied legitimation and still have a child support obligation.
Leh Meriwether: Yup.
Todd Orston: So understand that you can't sit back and go, "I have no rights, great. I have no obligations." Yeah, you do.
Leh Meriwether: Mm-hmm (affirmative). And we've had that happen many a time. We block legitimation and at the same time the court ordered the person to pay child support.
Todd Orston: Yeah, I mean, and think about it, what the court is looking at is what's going to be in the best interest of the child. So basically if you've been out of a child's life for that long a period of time, it could be more harmful or unsettling for a child. So all of a sudden it's like, "Oh, by the way, here's your dad." And that's really what the courts looking at. So you may have a lot going on in your life, but if you have any hope of establishing a relationship with a child, do not procrastinate, do not wait because you may actually ruin your chance of ever being able to establish that relationship.
Leh Meriwether: Yeah, exactly. All right. Here's one that's interesting. "Would I be able to use the same lawyer that my ex-wife used two to three years ago against me in a case now against her? In 2016 and '17, my ex-wife and I went through court for a divorce and child custody case. She has since moved to another state without my consent. She is now trying to give her mother guardianship and take away my parental rights. They currently live in Alabama with the grandmother. They are supposed to reside in Georgia by court order. What should I do next, and would I be able to use the same lawyer that she used against me in our previous case?"
Todd Orston: No. Next question. No.
Todd Orston: No, it's an absolute conflict. So if I understand things correctly, and I don't want to belabor this point because I think it is a fairly simple question with a simple answer. If you're saying that your ex had an attorney and in that case where it was you against your ex and she had attorney A and now you want to use and hire attorney A in an action against your ex, even if it's not exactly related, that is 100% a conflict. There is no way that that attorney more than likely will be talking to you. And I will tell you this, if you've reached out to that attorney and that attorney is willing to even consider representing you in that action, you do not want to use that attorney.
Todd Orston: So I'm telling you right now that at least here in Georgia, but I'm very confident it would be in any jurisdiction which you are dealing with this that there's going to be a conflict, and that attorney would be prohibited from representing you.
Leh Meriwether: Yeah. Now I will say this, don't wait to take legal action. Because I'm hearing she's in Alabama is trying to file some action in Alabama. Georgia's going to maintain continuing exclusive jurisdiction as long as he's in here. Now that could be changed, but I would not wait. If she is interfering with your parenting time, you need to file for contempt. You may need to file for a modification parenting time or perhaps a modification of custody all together. If she's moved to Alabama and wants to give guardianship to her mother, to the grandmother, I would move to get custody. I wouldn't wait. Not to mention she can't do that... Well, I don't know Alabama law. Here in Georgia, they would have to get permission from you or have a hearing on it, and I don't think the Alabama court should even get jurisdiction because there's a previous court order in Georgia on custody.
Todd Orston: All right. So how about this one, "Making up lost parenting time. My ex and I have split custody of our nine year old son. Myself being the primary. The child's father often leaves town during his visitation time for either work or vacation and expects me to swap days with him when he returns to make up for lost time. My child has been diagnosed with anxiety issues. It's been recommended by a therapist that he stays on a consistent and reliable schedule. Due to that reason, I would like to have a set schedule instead of switching days due to my ex's schedule. Would a judge frown on me for not accommodating him and say that I'm keeping the child away from his father?"
Todd Orston: That's a great question. We deal with that quite often as well.
Leh Meriwether: Yeah, and there's no one answer for this.
Todd Orston: I agree.
Leh Meriwether: So I guess the short answer is maybe.
Todd Orston: But it's a strong maybe.
Leh Meriwether: Yeah. All right. So pull back for a second. The first question I would have is has dad been involved with his therapy sessions because if he hasn't and you start doing it, then he could try to argue that you have set this whole thing up and try to pitch the judge against you by telling a narrative that may not be true. But you gave him the facts to create that narrative. So what I would do is invite him to meet this therapist, and talk to the therapist about, "Hey, look, we care deeply about our son."
Todd Orston: Hopefully you don't hesitate that long when determining the sex of your child.
Leh Meriwether: No. "We care deeply about our son. The fact that when you come back in town you want to see him shows to me you that you care about him. But I don't know if you are in denial about..." Not denial. "I don't know where you are as far as understanding the anxiety issues he's working with. He's been seeing this therapist. They say that the best thing for him is a consistent schedule. Can we meet with the therapist and perhaps have the therapist recommend a resolution to this problem?" Because you say, "Look, I'm getting medical," or I don't know what this person's degree is, "But I'm getting expert recommendations that this is not healthy for our son, and we both care about his deeply. I don't want to just suddenly cut you off. Can we meet with the therapist and talk about a way to work past this?" I think that would be...
Todd Orston: I agree. That's definitely a good approach.
Leh Meriwether: And then if he just flat out refuses and this therapist is willing to testify that this schedule's not healthy, then you may just need to follow the court order.
Todd Orston: Yeah, I mean, look, here's the thing. Going back to your strong maybe, the issue is is this really having an impact because what we will tell people is... And also my question to this person would be how often is this happening? Because if this is happening once every quarter or even once a month, that's not that often, and you said, "Well, if you have an expert who's willing to come to court..." Well, if that person is willing to come to court to say yes, not only can it but it is having a negative impact, that's a different story than you just saying, "Well, it could have..." For all we know, the evidence would be every time that happens, your child is so happy to see daddy that the anxiety issues are a non-issue. So you have to be very careful.
Leh Meriwether: You know what I'd be happy about? When we come back, we're going to talk about... We're going to explore this question just a little bit more.
Leh Meriwether: Welcome everyone. I'm Leh Meriwether and with me is Todd Orson. Todd and I are partners at the law firm of Meriwether and Tharp, and you're listening to The Meriwether and Tharp Show. If you want to read more about us, you can always check us out online at atlantadivorceteam.com.
Leh Meriwether: Today, we've been diving into some various questions from... Family law questions and answering them the best we can based on the information we have. But I did want to give this quick reminder that we are now using the open mic app through WSB. So if you go to WSBradio.com or download their app WSB Radio App from the app store, you can leave us a question through the open mic app. And we will play your question on air and answer it. So if you have questions about divorce or family law or marriage questions, how can I save my marriage, those kind of things, we would be more than happy to address them all on air. Of course, if you don't want us to play the actual recording, just let us know in the question when you leave it.
Leh Meriwether: All right.
Todd Orston: So going back to, before I was so rudely interrupted... No, but what it really comes, in my mind, what it really comes down to is you have to show that you are a good co parent, that you are working with the other party. And if there are occasional requests for a swapping of time, my advice to you is unless you have really, really, really strong evidence, meaning therapist and what have you that will say that that swap, the occasional swap, will cause injury to your child, then I would suggest that you try to make some allowances. If we're talking two-three times a month, I understand. That's just not fair. It's not fair. Forget about the effect on your child, it's not fair to you. So what I'm saying is you have to strike a balance. That's where I agree with your maybe. It may not be reasonable if he's asking all the time. But it maybe reasonable if he's not asking all the time and then I would say to you as long as this road goes both ways in terms of if you ever ask him for something and he's like, "Nope." He's like, "Well, this is my 14th time this year that I'm asking for an allowance," if you will. Then obviously at that point, you might say, "Listen, until you start accommodating some of my requests, stop asking me."
Leh Meriwether: Right. I will say if you're following the court order, the court can't hold you in contempt or anything like that. Now unless the court order says you're going to work with him on a schedule.
Todd Orston: But that's a contempt issue. A modification, if you are just shutting down... I mean, let's say something because I've had situations where the request for an accommodation was because my grandfather... I know it's your time. My grandfather is in the hospital and is going to pass way.
Leh Meriwether: That's a reasonable request.
Todd Orston: That's a reasonable request. If that goes in front of a judge in the form of a modification, who do you think the judge is going to be unhappy with? More than likely you for saying no because it was a reasonable request. If you're going on the 10th, "Ope, sorry. I took another vacation so I'm going to swap this time for that time," and you're finally saying, "I'm done. No, we're going to go by the terms of the order." I don't think you're going to have any problem with the judge.
Leh Meriwether: I think going back to vacations too because you do have control over that. So I think if she were denying makeup time for vacations, I mean, why would he not be taking his son on vacation with him? But I don't see any issue with that.
Todd Orston: That's a choice.
Leh Meriwether: The work ones that I think is a big question mark.
Leh Meriwether: All right. Next one, "Can you prosecute the boyfriend of your wife for demanding visitation time with your child and entering your home through an unlocked door? My wife and I are still married but have been separated for five years. My wife started seeing someone who my child do not care for. When I was not home, my wife's boyfriend came into my home through the unlocked backdoor. After my son had stated he did not want to go with him and demanded my son to leave with him and his mother. What legal action can I take towards this incident?"
Todd Orston: All right. Well, yes, I will tell you that that person entering your home may have committed a crime. He did not have any right to enter into your home, and the first thing that I would do if you're looking at this in criminal terms, like a criminal trespass, you have to put him on notice. So I would put something in writing, and it should be a formal letter, maybe even by an attorney where you say, "Do not ever come into my home again. You came I without my permission, and from this point forward, if you come into my home without my explicit permission, I will consider that to be a crime. And I will contact the police."
Leh Meriwether: Well, here's the question though. Is your name still on the deed?
Todd Orston: And that's absolutely, that is an issue. The defense that he has is that she owns... You're still married. This is partly her home. She gave me permission. Okay. At that point really all you can do is file your divorce and go in front of a judge as soon as possible, and part of what you're asking the court for, and it may even be in... For an expedited hearing or an emergency hearing is, "My wife, we've been separated for fives years, is having her boyfriend come into my home, and not only that but come into my home to force my child to come out of my home and that needs to stop." More than likely the court will say, "Yeah. Ma'am, tell your boyfriend not to go into the home anymore. We'll deal with custody. We'll deal with all these issues, but from this point forward, sir, you've been there for five years. You already have temporary use and possession of the home. Ma'am, you stay out and definitely have your boyfriend stay out."
Leh Meriwether: Yeah, and, "Oh, by the way, when the kids are with you, your boyfriend better not be at the house." Because we've seen that before too.
Todd Orston: Oh, absolutely.
Leh Meriwether: Well, they can be there during the day but they can't sleep there at night. So I think the legal action that he needs to take is file for divorce.
Todd Orston: Yeah, I mean, that really is the next... After five years, the next logical step.
Todd Orston: All right. How about this, this is related to modification of child support. "Can my boyfriend have his child support reduced if he has two other children to help support? My boyfriend's currently paying $1200 every three to four months for two children that he does not get visitation with due to the mother. I have a three year old and have another child on the way. If I gave him custody of our son while being pregnant, would they reduce the payments? We are struggling and need more money to support our son and help with the new baby."
Leh Meriwether: Sorry. I don't mean to laugh but no. First off, I haven't heard that either of these children are his.
Todd Orston: Yeah, well I'm assuming basically my reading of this is he has two kids, but he has now with this new significant other has one and one on the way.
Leh Meriwether: Well, no. But she says, "I have a three year old and have another child on the way." She doesn't say these are his kids. That's where-
Todd Orston: I think we have to make some assumptions here.
Leh Meriwether: Yeah.
Todd Orston: All right. Otherwise, you're right. This becomes something maybe-
Leh Meriwether: If they're not his kids-
Todd Orston: Well, that's a different issue.
Leh Meriwether: Yeah.
Todd Orston: If we assume that he has two kids with another mother and he is paying child support for those two kids, but now you the person who's asking the question, you have a child and one on the way. And you're asking, "Can we, in essence, reduce his existing child support because he has to also now support one and a half kids?" All right, so it'd be two kids. The answer is no. You're not going to be able to modify simply on the grounds that you have another child and one on the way. Now if roles were reversed it's interesting because if he basically... If somebody was trying to put him on child support and there's a child... Let's say you tried to put him on child support, then the fact that there's an existing child support order would make its way into the worksheet for you and could impact or would impact the child support amount that he's paying you. But that's not what we're dealing with. You're basically wanting to save money and reduce his existing support obligation, and I don't believe that would be possible.
Leh Meriwether: It's all within the court's discretion because that's [crosstalk 00:41:18].
Todd Orston: You wouldn't be able to modify. So you can't even open the door to a modification on that.
Leh Meriwether: Yeah. There has to be a change of financial circumstances. I'm not sure voluntarily having two more children...
Todd Orston: I don't believe that that would rise the level, and I also don't believe that having one and a half kids with no child support obligation for those kids would-
Leh Meriwether: No court order.
Todd Orston: Yeah, there's no court order. I don't think that would open up the door.
Leh Meriwether: Yeah. Let's put it this way, I've never seen a judge open that door before. Could it have happened? Possibly. But I don't see it happening.
Leh Meriwether: All right. We're running out of time so last one. "How to get custody of my 14 year old cousin. I'm 19 years old and my fiancee is 21. We are trying to get more information on the steps we would need to take in order to adopt my younger cousin. I'm moving out of the state within the next couple months, and I would like to bring him with me when I leave. I would like to get his mother's permission. But I need to know the correct way to go about it. If we had her permission, what would the next steps be?"
Todd Orston: Okay. First and foremost, don't just leave with him. Okay? So let's start with what you should not do. What you should do, really this goes back to our talk about guardianships. Get a permanent guardianship for the child. If it's by consent, then it should be possible, and it should not be a problem. And then at that point, once you have a guardianship, then yes, you can leave the jurisdiction. You can go where you want to go and raise this child. Basically he becomes your ward. He becomes the person or a child that you are responsible for. Absent that, I mean, in terms of fighting for custody, you don't have a leg to stand on. You can't fight for custody.
Leh Meriwether: Unless mom's a meth head or something like that.
Todd Orston: And even then, you would still start with a guardianship, then that might lead to a termination of the mother's rights, which would then beg the question where is the father, and then does he have to be considered. And then at that point, once rights are terminated for the mom, you might be able to get custody.
Leh Meriwether: You know what's being terminated?
Todd Orston: This show.
Leh Meriwether: Well, not the show as a whole, but today, we're out of time. Hey everyone, thanks so much for listening. As I said before, if you have a question, definitely leave it on the open mic app at 95.5 WSB.