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Episode 105 - Child Custody Questions and Answers Part 2
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 Meriwether and Tharp radio on the new talk 106.7. Here you learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis and sometimes even tips on how to take your marriage to the next level. Well today, we're going to just continue what we started last week, Q and A.
Todd Orston: Q and A. Questions and answers. I'm gonna give great answers and Leh will try.
Leh Meriwether: I just have more questions. No, actually these questions, sometimes the challenge to some of these questions is we often need a lot more facts to give a good, solid answer. So our answers are always limited by the facts that are currently in front of us. And that's why we keep asking more questions, if this, then that.
Todd Orston: Yeah. As the hypothetical grows, obviously our advice grows as well and sometimes changes. I mean, just sort of like in the last show we did, we talked about a child who was looking at pornography. Well, the analysis becomes different, very different if it's legal pornography versus illegal pornography. And so every fact pattern, as we are digesting those facts and coming up with an answer, coming up with a response, it can change very dramatically just based on one changed fact. So anyway, we're going to do our best.
Leh Meriwether: Yep. All right, first question. Can I gain sole custody of my child in Georgia. So as I understand the facts from the question, my two year old daughter was born in Georgia, she's always lived here. Her father recently moved out of state and I'd like to be granted full physical and legal custody. Her father and I were never married, which is an important factor here, and only share one child in common. He visited with her twice a month when he lived here but since he's moved he's only seen her about two months. He's not active in her life and he doesn't assist in any of the decision making for her. There's a court order in place for child support, which hasn't been paid in almost six months but there is no visitation order in place. What information will I need to file for sole custody? Will her father need to be served/present during court and can I move out of state with my daughter? Todd?
Todd Orston: All right, well let's start with the basics. My reading of that tells me that unmarried and therefore there has not been, excuse me. I'm getting all choked up, a formal legitimation. So if there's no legitimation, then under Georgia law the father has no legal rights whatsoever.
Leh Meriwether: So she already has sole legal physical custody?
Todd Orston: That's right. And until such time as the father affirmatively petitions the court for legal rights, for legitimation, then going to some of the questions that were asked like, "Can I move out of state with my daughter?" Absolutely. Because he has no legal rights at this time. And on top of that, I can tell you, even if he did have legal rights, you would have to let him know you were moving, but the fact that he has moved out of state, it would be very hard for him to say, "It's okay for me to move but no, you can't relocate." But in this situation, I believe that the mom is the only one with legal rights and therefore, "What would I need to file for sole custody?" Nothing.
Leh Meriwether: In Georgia?
Todd Orston: In Georgia. And will her father need to be served or present during court? Well first of all the answer to that is always.
Leh Meriwether: If there's an active case.
Todd Orston: If there's an active case and if, or once, you properly serve that party, they will be given notice to go to court. Now do they need to be there? Some courts if one party doesn't show up, say, "You know what? I'm going to postpone this. Let's try one more time, put them on notice so they can come to court." Some judges are like, "You know what? We gave proper notice, sent it to the right address or had them formally served with this document telling them they needed to be here. They're not here, we're moving forward." And that's usually when bad things happen.
Leh Meriwether: Yeah. For the person who's not there.
Todd Orston: Absolutely.
Leh Meriwether: And in Georgia, also, only the father can file for legitimation because it's his right, since he has no rights, he's the only one that files for it. I do find that a little frustrating sometimes because police officers are inconsistent in the application of the law here because it's a nuanced area of the law. And I know, Todd, you've had cases where mom was doing the right thing letting father be involved in the child's life but father's refusing to return the child. He had no rights because he hadn't legitimated and she was struggling getting the police officer to compel him to release the child to mom.
Todd Orston: Yeah, take it a step further. And I'm going to say these things, this is not an attack on the police. Okay? I'm a former prosecutor, I believe in what they do, I respect what they do. Sometimes, especially when we're talking about these legally delicate issues and these nuanced legal issues, they just get it wrong. Okay? In Georgia, unless there's been a formal legitimation, then the father has no legal rights. Just because mom has been nice enough to allow the father to have parenting time, absent legitimation and absent a formal custody and visitation order, doesn't change the fact that the father has no legal rights. So in that situation we're referring to, I had a mom who was calling me and said, "I called the police." I actually spoke with an officer and the officer's response to me was, "Go to court and get an order showing he doesn't have legal rights." And it got a little heated and I'm not gonna lie, I got a little frustrated trying to explain I don't have, and my client doesn't have an obligation to prove a negative.
Leh Meriwether: Because you were actually speaking to the police officer then?
Todd Orston: Yeah. So I spoke and I tried to explain. I even pulled the statute that shows that absent legitimation, the mother has custody. That's it.
Leh Meriwether: Period.
Todd Orston: And so explained it and yet the response was, "Nope, go to court. This is clearly a civil matter and prove that he doesn't have legal rights." That was wrong. But it just goes to show that some of these legal issues, it's not that there's a gray area but there's a big misunderstanding by not just people, but also by law enforcement.
Leh Meriwether: Right. So I think that, I guess if there was some advice rising out of this it might be that, "Hey, while the two of you are getting along, you probably want to go ahead and legitimate."
Todd Orston: That advice, we give all the time. And I would parent that, I would say any father, if you have a child born out of wedlock, do not wait. Don't wait a day. I know you may not want to deal with it but it's a lot easier if you move immediately for legitimation. Okay?
Leh Meriwether: It just looks better.
Todd Orston: Absolutely. And there's no arguments of you waited too long or you weren't involved enough or whatever.
Leh Meriwether: And there's situations where if the parties are living together, you can just legitimate and not worry about the parenting plan, the child support and all that stuff. So you can just keep it very simple and just do that.
Todd Orston: That's right.
Leh Meriwether: All right.
Todd Orston: My turn?
Leh Meriwether: Your turn.
Todd Orston: Oh my turn. All right. So basically there's an issue of wanting to prove a mother unfit and ask for a change of custody based on what's in a child's best interest using the evidence that was provided. So this person said they have multiple police reports spanning over a year regarding the mother and these crimes, or alleged crimes, had to do with custody interstate interference and simple battery. But the person goes on to say but no officers would charge her. And number two, there were instances when, at the exchange and in the presence of officers on different occasions, mother was witnessed by officers and on body cams of using extreme profanity in a demeaning manner towards myself and very angry behavior in the presence of the child. So angry that an officer had to literally yell at her to calm down and step away from my vehicle.
Todd Orston: So the question that this person was asking is what are my chances and what generally happens when asking for a change of custody with strong evidence?
Leh Meriwether: Do you want me to answer that?
Todd Orston: Unless you're too busy. I don't want to bother you.
Leh Meriwether: All right. So ...
Todd Orston: First of all it comes down to one's definition of strong evidence.
Leh Meriwether: Yes. You know, clearly, obviously not arresting the mother, I mean that's a great defense. If I had hit you, the officers would have arrested you. So sometimes with these situations, you take progressive action. So the first action might be a simple contempt of court against her. I don't know if he's done that yet but that's one of the things I recommend first is a contempt of court action because then the court can sanction her for those things, for talking badly about him. And obviously it depends on which judge you're in front of too because some judges, they tend to lean more in favor of the mom. That's just how they are. And I've seen it in both sexes, male and female judges. So you want to know what judge you might be in front of because a contempt, on the other hand, though, the court's gonna come down real hard on some of this stuff that I'm reading here. Especially if there's video tape of her screaming at him in front of the children.
Todd Orston: And in front of police. With police there trying to keep calm.
Leh Meriwether: Yeah, that's gonna create, I could see that because most parenting plans we see have included in it language saying that neither parent will disparage the other parent, especially in front of the children. So that's grounds for contempt. And up next we're going to get into what other steps this father can take.
Leh Meriwether: Welcome everyone, I'm Leh Meriwether. 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 on the new talk 106.7. If you want to read more about us, you can always check us out online at atlantadivorceteam.com. Well today we've been going over some Q and A about mostly custody, some really challenging situations that people find themselves in, unfortunately. Because obviously the children are caught in the middle of these. And we're breaking them down, asking more questions, creating more hypotheticals off the questions but really trying to help out the people asking the questions and everyone that's listening because we're trying to go into perhaps some advice that we can learn from these situations and how to avoid them.
Leh Meriwether: And where we left off was somebody was asking about can they go to court to seek custody because the mother of their child, there was apparently several custody interstate interference issues, there was some battery issues, apparently they're having to do exchanges at police stations, she's been caught on video screaming and yelling at him in the presence of the child. We were talking about what steps should he be taking and I talked about a lot of times, depending on the judge, you might want to start with just a contempt. And what will happen is the court will sanction the mom and often the court will, in addition to sanction, say, "If this behavior doesn't stop, I'm going to consider changing custody." Now the problem is this is all happening at the exchanges so changing custody may not necessarily fix the problem. And that's what you run into when the judge walks in to hear the case.
Leh Meriwether: So the other question becomes is her behavior only directed at him in the presence of the child or is there an issue of parental alienation also going on that wasn't put in the question? But those can be difficult to prove and you need a custody evaluator, usually involved. But generally, start with contempt and build your case because contempts are short and they don't cost tens of thousands, well normally they don't cost tens of thousands of dollars. But you start there. If she is found in contempt a couple of times then next action is for a change of custody.
Todd Orston: I'm gonna hit it from a different angle. I'm gonna say this, a change of custody is very difficult to accomplish. The burden's high meaning that it's a high, high hurdle. You're going into court and saying, things have gotten to a point, they've progressed to a point that the status quo is no longer acceptable. It's not healthy, it's not in the best interest of a child, and you're asking the court to do the ultimate, which is strip one person of their custodial rights, or at least modify those rights dramatically, taking away certain rights from that parent and giving them to you.
Todd Orston: Like I said, we do it all the time, but it's very hard to do and you have to have good evidence. Now what I'm reading is this person cannot co-parent. This person is yelling and screaming and it doesn't matter that you're doing things in the presence of police officers, that doesn't stop her from acting out and doing things incredibly inappropriate and potentially damaging not only to this person, but to a child. Okay? Because it's all happening in front of a child. So could that rise to the level of requiring modification? Yes. But give it a lot of thought and make sure. We said this in the last show, it's all about what you can prove. Not what you feel, not what you think. What can you prove? And do you think that that evidence, based on, like you said, the judge that you have, will be enough to sway that court and convince that court to do the ultimate? Which is swap custody and punish her.
Todd Orston: So that's why, to your point, sometimes a contempt might be the best first step. Because what you're doing is locking in that bad behavior. And if you can prove enough to get the court to sanction that party, then that's one notch in your belt so that if you ever have to go back to court, the first thing you're saying is, "Judge, we're here again. And if you remember, a month ago, two months ago, whatever, you sanctioned her for this kind of behavior. Well I have more evidence that that behavior continues. Unfortunately now it's a modification, I need a change."
Leh Meriwether: Mm-hmm (affirmative). Yeah. Good different angle.
Todd Orston: Sort of parallel.
Leh Meriwether: All right. So I got ... This one's a little bit different. I don't know if we've ever had this question before. It involves a little bit about immigration law that we probably will, we will skirt around.
Leh Meriwether: All right so I'm a US citizen and went to Africa to visit my family and fall in love with this guy and decided to bring him to the US in a short period of time. The easy way recommended, somebody recommended having a fiancee Visa, which cost her apparently thousands of dollars through a lawyer. And there was a four month process involved. She spent the money to help him come over, she also apparently helped his son come over. But then once he got over here she started to get calls from his wife. And she apparently started calling every day, crying that she is missing her son and her husband and asking her to return her husband. Once we had the first interview and they got this temporary green card, he thought that it was the end of the road and started telling me that he didn't want me anymore, we didn't have a future together. I moved out from the apartment we lived in and he hasn't gotten his green card yet. He's threatened me that if I report for immigration, something bad will happen to me so I'm very afraid for my safety. What should I do? I don't know this man's background. He's very violent. I filed for divorce but he counterclaimed just to extend the process. What should I do?
Leh Meriwether: Todd? What should she do?
Todd Orston: Again, a lot to unpack. First of all, mail order African husbands with children may be not the right way to go in starting a new relationship. But no judgment. And look, it's unfortunate. This stuff does happen and it's not always a mail order husband or bride. Sometimes, and here there's this angle relating to immigration. But it could be any number of reasons why. It could be you have a house and they want a house. It could be any number of things. But here, really what we're talking about is a divorce has been filed but there is an issue here where a divorce may not be required. Because another thing that should be considered is what's called annulment. It's very hard in Georgia, it's very hard to get a court to annul the marriage. What that means is you are nullifying that marriage as of the date of the marriage. It's as if the marriage never occurred.
Todd Orston: Now, taking out of the equation the issue relating to he's already married, and we're gonna absolutely get back to that. But putting that aside for a moment, it might be difficult to get a court to annul the marriage as opposed to just do a divorce based solely on the fact that after three, four, five, six months, whatever it is, he said, "We don't have a future together and we need to get a divorce." All right? Because what you have to prove there at that point is fraud. Did he engage in fraud and fraudulently marry you in order to just get a Visa, get to the United States and then he used you for that and now he's divorcing you? The court might say, "You know what? That doesn't rise to the level of what you need to prove in order to get an annulment. So you may need to focus on more of a divorce."
Leh Meriwether: Yeah there's six factors to annulment and one of them is that one of the parties was committing bigamy. So that's one right there.
Todd Orston: And like I said, we were going back to it.
Leh Meriwether: Yeah. One spouse was married to someone else at the time of the marriage. So there we go, that's one, based on one ground. And the other one's fraud. It sounds to me like the bigamy is the easier one.
Todd Orston: And that's my point. The easiest one would be bigamy. Because it comes down to what can you prove? You can't just say, "He's married." You're gonna have to-
Leh Meriwether: You would have to actually probably go back to Africa, get the marriage certificate-
Todd Orston: Yeah to prove that he is married or get him to admit that he is married in Africa. And if you can do that, then it's almost a done deal. I mean at that point the court really needs to nullify this marriage, annul the marriage. And if you can't prove that, or if those facts weren't there, if you were just dealing with somebody where it's I thought it was love but clearly they were using me, maybe you have the fraud argument.
Leh Meriwether: Right. That's a hard one to prove.
Todd Orston: It's a very difficult one because all he has to say is when I met you, I loved you. I wanted to spend the rest of my life with you. And then for whatever reason, and there will probably be some finger pointing that you did things wrong and therefore I need a divorce, I don't want to be married to you anymore. But you might have the argument. The easier one would be to focus on the bigamy issue.
Leh Meriwether: And I would also say to go talk to an immigration lawyer. Because what you don't want to be accused of is participating with him in any sort of way in order to bring him in here. So I don't know the laws around that but I've heard of some situations where people have gotten in trouble with immigration, with the federal government for this so talk to an immigration lawyer too about what you should do on that front.
Todd Orston: Yeah now there's another issue brought up here and that is I don't feel safe. Okay. At that point, because you're married, because of the relationship you have with this person, you could petition a court for a protective order, a family violence protective order, if he has done something. If you have evidence that you can prove to the court that he's ...
Leh Meriwether: You know what? We're going to have to save that for the next segment.
Todd Orston: Tease.
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 Meriwether and 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. Well today we are continuing question and answers. And we've been actually diving into some really challenging, especially for the people asking the questions, challenging child custody questions, marriage questions. When we left off there was a young lady who apparently went to Africa, met somebody that she fell in love with, brought him back, married him and it turned out he was already married and his wife back in Africa has started calling wanting her husband and her son back because apparently he brought his son over. And she spent a lot of money dealing with immigration to get him over here.
Leh Meriwether: And so where we left off there was an issue of her feeling safe. And you, Todd, were getting into-
Todd Orston: Oh now you want me to talk about it? You cut me off and now's a good time for you, Leh? All right fine. All right, no joke. I understand. We had to go to a break.
Todd Orston: Protective orders. Okay? Because I don't want to ignore an important part of this where she made the comment that she was afraid for her safety. And I don't know whether or not she has a right to feel afraid, whether or not this person actually did threaten. But I will say this, if it gets to a point where you are truly afraid for your safety and you can prove that something has happened that would cause you to feel that fear, then you can file for a protective order. You can file, in this situation, a domestic violence, domestic relations protective order, rather. And basically petition the court and say for this reason, based on this evidence, I do not feel safe and I need this person to be kept away from me. And the important thing about a family violence protective order is the fact that the sanction that it carries with it, if you can get it, is very severe.
Todd Orston: So a court order saying stay away, all that really does for you is it allows you to take somebody back for let's say a contempt. And the court can sanction you in some way. A family violence protective order brings with it the threat of criminal prosecution for aggravated stalking, a felony. So therefore if you make contact in violation of the order, not only could you find yourself being sanctioned by the court, the verbal tongue lashing, you actually might be prosecuted and put in jail. And we have seen more and more courts that are taking a hard stance. It used to be, okay somebody violates it, they get a slap on the wrist. You were told not to do it, don't do it. More and more prosecutor's offices are moving forward with these types of actions and prosecuting people and putting people in jail, even, for violation of family violence protective orders.
Leh Meriwether: So the big question is was there some violence that he committed towards her? Because it needs to be towards her. Or did he make a threat? So if he, "Hey if you say any ..." it really needs to be public, that's part of it. "If you go to tell the immigration service about my previous marriage, I'm going to kill you," or something like that. That's making a terroristic threat and so that can be, I believe that's a felony now.
Todd Orston: Well terroristic threats, yes.
Leh Meriwether: So that would count as a crime, which would provide her with the basis for the family violence restraining order. So there's got to be a valid basis.
Todd Orston: I believe there would be a difference though. Because the interesting thing, under terroristic threats, you need corroboration. You need some evidence to be able to prove that the statement was made. You can't just say he threatened to kill me and that's enough. But in a family violence protective order case, all right, getting a TPO, you could technically just go in and if you can convince the court that you're telling the truth and say, "He threatened to kill me if I go and do X, Y, Z or whatever," that might bee enough to get the protective order. So even though you might not have the evidence with a recording or witness to prove-
Leh Meriwether: Text message.
Todd Orston: Right. But even without that, the court might say, "Well you don't have enough evidence, I'm not going to issue the protective order," but the court could. If you don't have any other evidence, a prosecutor's not gonna touch that case because they're gonna be like, "You have no corroboration." But that would be what you would be doing. You'd be looking for some protection from the court in the form of a protective order and the good thing is the teeth that it has are significant enough that usually, I mean it's not absolute protection, but usually it will dissuade people from doing bad things because they know the sanction can be horrible.
Leh Meriwether: All right, let's jump into another question. What can I do about the noncustodial parent taking my child to the ER without informing me and then wanting me to pay half the bill? So apparently I have sole legal custody of our two girls, we live in Georgia, mother's in Virginia. Apparently the girls' insurance isn't accepted up there and during a visitation the youngest was taken to the ER with a fever of 100 and minimal vomiting. No other symptoms were present. She did not tell me that she was taking her until after the fact and is now asking for 50% of the bill. She is only asking for this because I reminded her the divorce order states we are responsible for 50% of uncovered expenses and I just got a bill from one of our daughter's doctors. So I informed her of what her half would equal and reminded her about the prescription. Anyways, so he feels that the fever of 100 and minimal vomiting was not a medical emergency and she should have consulted him first. And because he wasn't consulted should he be responsible for paying half of a $2,000 emergency room bill because it sounds like the insurance company didn't cover it?
Todd Orston: Well the easy way to resolve this is forbid your child from ever getting sick.
Leh Meriwether: You can do that?
Todd Orston: I think so. I read about it online.
Leh Meriwether: I'm gonna do that tonight then.
Todd Orston: That'd be great. Look, the reason I'm hemming and hawing is the fact that on one hand, I want to look at the person and say if you go in front of a judge, critical of the fact that the other parent took your child to a doctor when the child had a fever and it's reasonable to have some level of concern about the health of the child, I'd be like you are barking up the wrong tree. Because the court's gonna be like granted, maybe emergency room wasn't the best place to go. But she got your child medical help and you're in different states. She needed to do something. And even if she had called you, if you had said, "Don't go to the emergency room," the court might be like, "But I'm still okay that she went and got the child help."
Leh Meriwether: I will make this one comment he had in here that he has not seen the discharge papers yet.
Todd Orston: And that's obviously all of this-
Leh Meriwether: It may have been a lot worse than this, he's just interpreting it that way.
Todd Orston: Yeah. Or it could be a bunch of nonsense that it's $2,000 and maybe she's saying, "It's $2,000, just give me $1,000 and make it cash to me."
Leh Meriwether: Oh he did say he got the bill.
Todd Orston: Okay. So if there's a bill for $2,000, granted, going to the emergency room, especially if you don't have insurance, it's probably not the best choice.
Leh Meriwether: She may not have known it.
Todd Orston: Yeah. But the one thing I can't say, here's the other issue I have is do you, as the primary custodial parent, do you have insurance? Did you provide the other party with insurance cards so that she could use ...
Leh Meriwether: It sounds like he did and they just didn't accept the Georgia insurance up in Virginia. That doesn't sound right. I think the first thing I would do is go back to-
Todd Orston: And petition the insurance company.
Leh Meriwether: To cover this.
Todd Orston: Yeah. But here's the problem, I guess, what I'm trying to say is a court's going to want to make sure that a child's taken care of. And so being critical of the fact she went to the emergency room is only going to get you so far. Really I think what would end up happening is the court might look at both of you and say, "If you're going to live in different states, put a better plan together so that when the child is visiting in Virginia, that you can make sure that your child gets the help that ..."
Leh Meriwether: She's got insurance up there.
Todd Orston: That's right.
Leh Meriwether: Yeah. So if the order says both parties are going to split it, or their settlement agreement, and there is nothing out, else, there are no exceptions to that, he's going to have to pay half. Even if it was unreasonable. All he can do is go back to the court to petition to create a scenario where perhaps she has health insurance for them up in Virginia. Or he needs to get a new health insurance plan. I don't know all those details. Sometimes the devil's in the details. But at the end of the day, if you look at your order and that's all it says and there are no contingencies, you're going to have to pay that bill.
Todd Orston: Yeah, more than likely the court's going to err on the side of everybody just participates in the payment of that expense and let's come up with a better plan so that if the child ever gets sick again, it doesn't result in a $2,000 bill.
Leh Meriwether: Yep. So up next we've got this question for you. I have joint custody of my 14 year old daughter and my ex-wife is the primary. My 14 year old ran away from home last night and wants to come stay with me. Will I face legal charges if I go get her and bring her to my house?
Todd Orston: Should we talk about it now or wait?
Leh Meriwether: Let's wait. We're gonna get into that and a couple more questions up next. 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 this 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 web masters 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 and Tharp and you're listening to Meriwether and 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.
Leh Meriwether: Well let's get back. We're at the last segment and we have a few more questions we wanted to get through.
Todd Orston: Absolutely.
Leh Meriwether: Today we're digging into some questions that we have come across that people were struggling with, most of them having to do with child custody. And the last one we teased, it's a good question. We see this happen frequently. So the question was I have joint custody of my 14 year old daughter with my ex, she has primary. But the 14 year old ran away from home last night and wants to come live with him. Will he face legal charges if he goes and gets her and brings her to his house? So there's multiple levels that you can dive into this on.
Todd Orston: Yeah. As with anything and everything, there's a right way and a wrong way to do things. Okay? In this situation, if you have a 14 year old who, in Georgia, I'm jumping ahead a little bit, in Georgia can elect which parent they would prefer to live with primarily. It's not a foregone conclusion but an election can be filed, I understand. So a 14 year old wants to live primarily with dad. Dad, should you be driving over there picking up your child? Or she runs away and you just take your child to your house and think that's the end of it? Absolutely not. My opinion is make sure your child is safe and unless there's an emergency situation ...
Leh Meriwether: Or she's at some third party, not at Mom's house.
Todd Orston: That's right. Then absolutely make sure your child is safe, go pick up your child. One of the first things you should be doing is contacting the mother saying, "I have our daughter, this is what's going on. Just wanted to let you know. I'd really like for her to stay over. Let her just stay over with me. Maybe things will calm down." That doesn't stop you from moving forward with filing something with the court to change custody, okay? But you want to do this the right way. What you don't want to do is she calls and says, "I hate it here." And you go and you pick her up and you take her away when it's the other parent's custodial time. That's gonna make you look terrible in the eyes of the court. The only way you should be doing that is if it's like, "Mom's beating me or Mom's doing something so horrible."
Leh Meriwether: Or she's passed out drunk.
Todd Orston: Or she's passed out drunk or whatever that, on an emergency level, you need to go protect your child? Okay. Other than that, do things the right way. And if your child's at a third party's house, fine. Go pick up your child but you need to get on the phone with the mom and hopefully convince her that she stays with you.
Leh Meriwether: Right. And I think that, because I've actually had a client that did this before, I think it was the wise thing to do, is that the client spoke with the child and asked, I can't remember if it was a son or daughter, but asked the child what the issues were, why is it they wanted to stay away, got some information, picked up the phone, called Mom, asked Mom what she thought was going on, relayed to Mom, "Here's what our child told me and it sounds to me like you've been trying to implement some rules in your house. And so our son/daughter is rebelling. And if I file an action, that's going to be a temporary fix and she'll start rebelling against me too. And that's not the best thing for our daughter. And let's talk about what to do about this." And that's the struggle. Because in Georgia there's some people that will rush to the courthouse, they'll get an affidavit of the election of the child. Georgia's one of ... Is it the only state that I think allows it?
Todd Orston: I'm not sure but every state does not have these laws.
Leh Meriwether: Right. So they'll rush to the house, get it and then that's not necessarily the best interest of the child. Because they may do that, and we've seen that before. And that's why some of the judges don't like the election statute because they'll play the parents against each other and you don't want that to happen because that's not in your children's long term best interest.
Todd Orston: Now I will say that digging a little bit deeper into the election rules, it's not, as I was saying before, a foregone conclusion. Just because a 14 year says, "I'm electing to live primarily with my mom over my dad or my dad over my mom," doesn't mean that's what the court's gonna do. The court has absolutely the right to reject the election and decide what it believes is going to be in the child's long term best interest.
Todd Orston: So understand that just by virtue of the fact that the child files or not files but executes the election and you file it, doesn't mean that you've won the case.
Leh Meriwether: It's not 100% guarantee but it is pretty close.
Todd Orston: At 14, the way I put it is, the older the child gets, the more weight that the election carries.
Leh Meriwether: Right.
Todd Orston: You can actually, I believe the age is 11 when you can start filing an election on behalf of a child.
Leh Meriwether: But that doesn't have any control over the judge.
Todd Orston: But an 11 year old saying this is where I want to live is going to carry just a little bit of weight. 12, a little bit more. 13, 14. Once you get to 15, 16, 17 years old, I've had judges firmly believe it's not in the best interest of a 17 year old to change houses and live primarily with the other parent. But look at everybody and say, "What do you want me to do?" The child can drive so if I say no you're not going to your dad's to live, the child's just gonna get into their car and drive to dad's and we're gonna be back here on a weekly basis trying to figure out how to stop that from happening. So unfortunately, or fortunately, the older the child gets, the more weight that the election carries.
Leh Meriwether: And on the flip side, obviously, if there is something inappropriate going on in mom's house, you probably do want to go ahead and file. Maybe mom's become, and we've seen this happen before, where a mom has become addicted to drugs or alcohol and so the child's actually fleeing for their safety.
Todd Orston: Or I've had just parties with really improper behavior going on. You know? Something where it is clearly an unhealthy, unsafe environment.
Leh Meriwether: So that's why you do that inquiry. Ask the child, you ask mom. Now if mom shows up with the police and an order, you can't fight that. But if she shows up with the police and an order and you think she's doing drugs, you can ask the police to see if they'll do some sort of test on her. I've seen people get DUIs because they drove over to the house drunk and then foolishly called the police. So do some investigation.
Leh Meriwether: All right, let's hit another question. Are my parents allowed to deliberately hide from me my daughter because they want to wait for an ex parte order to be signed. So okay, I was arrested for criminal trespass damage and when I was released I made several attempts to go get my daughter and my belongings. They agreed verbally and knew I was coming and nobody was ever there. They waited for the ex parte order to be signed.
Todd Orston: Well I guess my first question is did you find them? And when the answer I get is no, you never found them, then I guess they can do it. I mean, this is one of those situations-
Leh Meriwether: If they don't have any legal rights, yeah, they can do it but they don't have the legal right to do it?
Todd Orston: Correct. Did they do this improperly? And we've seen this before where people go and get ex parte orders, which you can't do in all situations but where someone goes and gets an ex parte order and they either say, "Well I don't know where the other party is," and they have that person's phone number and address and pictures outside their house and so when the time comes and the evidence is presented, it's clear that they were not telling the truth. But they still got the ex parte order. That's the evil of the ex parte order. It is outside the presence of the other party, who therefore doesn't have an ability to have their position heard by the court and considered by the court.
Todd Orston: So here, could they do it? They did do it. Okay. It's how do you deal with the outcome? And that's where you go into court and talking to an attorney, and preparing. You go into court and you explain to them all your efforts to try and locate them, that they just disappeared and basically then you make the argument to the court saying, "Clearly, Judge, they got the ex parte order by basically disappearing, refusing to talk to me, and this is really improper.
Leh Meriwether: And what we don't know is the facts of what led to all that. So probably the best thing is have a consultation with a lawyer. Because if it's something along the lines of that the parent, let's say the parent, we'll call them the grandparents, got into an altercation. And perhaps it was in front of the minor child so they think, "Because you got into an altercation with me, it's not in your child's best interest to be with you. And so they're trying to step in and act as the parents." Well, that's a pretty tall standard. And so you, depending on the facts obviously, you meet with your lawyer. Probably the next thing is just go get served, just go to the Sheriff's department, get served, get your court date, get in front of the judge, get ready, present all your facts and what may happen is the court say, "Yeah, I'm gonna give a protective order so Dad you can't see your parents for a period of time, but no the child is not staying with them. The child is going with you because there's no evidence that you have been harmful to the child."
Todd Orston: Yeah I think you hit the nail on the head. Unfortunately the process has to play out so the sooner you can get served, the sooner you can get in front of the judge who can hopefully do the right thing.
Leh Meriwether: And unfortunately we're also out of time. Hey everyone, thanks so much for listening. And if you're enjoying the show definitely give us a five star review, we would love it. You can learn how at mtlawoffice.com/reviewit.
Speaker 3: This audio program does not establish an attorney/client relationship with Meriwether and Tharp.