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Episode 118 - Family Law Questions and Answers Image

04/01/2019 1:46 pm

Todd and Leh take on several family law questions that had been presented recently. As usual, the questions have more than just a legal answer. Here are a few of the questions that they tackle:

Can an opposing counsel delay a modification in custody proceeding when my daughter has elected to live with me?

If I recorded a conversation with my spouse legally, can I share it with their family and our friends?

Do I have to have the consent of the biological father who has not legitimated to get a passport for my son?

If I currently have physical custody of my nephew and the biological mother has filed to get custody back, what documents should I get to prove my nephew should stay with me?

If I have primary custody and I get an offer to attend a great master's program in another state, can I move with my child?

Transcript

Leh Meriwether:             Welcome, everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law form of Meriwether and Tharp, and you're listening to Meriwether and 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 alantadivorceteam.com.

Leh Meriwether:             Todd, I just realized the other day that we've kind of, we haven't done a marriage show recently.

Todd Orston:                   All right, it might be a conversation for before or after the show we're doing right now. So, we are planning should be done at another time.

Leh Meriwether:             Yeah. So, we're going to, we need to add that to our planning schedule.

Todd Orston:                   Absolutely. Yeah, absolutely. I actually love those shows because we always tell people, I mean we may be divorce attorneys, but if there's anything that we could do, say or any help that we can give to keep you out of the divorce process, we're there for you on that also. You thought I was about to change the subject.

Leh Meriwether:             I had no idea where you're going with that. It's like, yeah Todd, you know that show we prepared? Magic, it's gone.

Todd Orston:                   We're throwing it out the window.

Leh Meriwether:             We're doing something totally different.

Todd Orston:                   All right, well today we're going to get into miscellaneous Q&A. Well-

Leh Meriwether:             You said that with that Wolf Man Jack voice. That was dramatic.

Todd Orston:                   I've been practicing.

Leh Meriwether:             Dun dun dun.

Todd Orston:                   Yeah, so we found that one of the best ways to learn and talk about different areas of family law, everything from the legal side to the practical side is by examining questions that people have, because sometimes truth is stranger than fiction and you can get some great questions from listeners and from people online that have, they are struggling with something very difficult. I mean, sometimes it's related to family law. Sometimes it's related to something else. But why not just take those questions and examine them, break them down and see if we can help.

Leh Meriwether:             Look even in law school, I mean, you might be able to or you would learn the letter of the law, but a lot of times application of a law is best learned through reading about a case.

Todd Orston:                   Right.

Leh Meriwether:             And understanding how the law was applied in that specific case, so.

Todd Orston:                   And of course, the professors love to create those hypotheticals that were just incredibly challenging to answer.

Leh Meriwether:             Right. Kind of applies.

Todd Orston:                   Yeah.

Leh Meriwether:             Maybe not. Maybe something else applies a little bit more. There's-

Todd Orston:                   We're not going to try and trick you.

Leh Meriwether:             Yeah.

Todd Orston:                   There's no Socratic method going on here, so.

Leh Meriwether:             That's right.

Todd Orston:                   Any of you listeners out there, you won't be called upon. If you get a random phone call from us, just understand, you must answer correctly.

Leh Meriwether:             Let's try it. All right, let's do the first question.

Todd Orston:                   All right.

Leh Meriwether:             All right. So this time, I think this week we're going to just focus on, it's going to be generally family law. But next week, let's do divorce. Let's just focus on divorce.

Todd Orston:                   Great plan, Leh.

Leh Meriwether:             All right. So, here's the first one. Can I share legally recorded conversation with the other person's family friends? Person in conversation is very emotionally abusive and talks despairingly of family and friends behind closed doors. Bu they think this person's a good person. Very narcissistic and borderline. Now, I don't know, this could be an active modification case. Doesn't say what kind of case it was. But I like the question, so I threw it in here.

Todd Orston:                   Yeah. And I will say, it's an easy answer. Yes, no.

Leh Meriwether:             That was easy. Kind of [inaudible 00:03:49] but easy.

Todd Orston:                   All right, next question.

Leh Meriwether:             No, I think the biggest challenge is if it's legally recorded, yeah you could, I mean if it's legal you could share it. But there are consequences for doing something like that.

Todd Orston:                   Or potential consequences. And what we mean by that is, not that you will get into legal trouble for sharing it potentially. I mean, if you share it with the wrong people, it could potentially open you up to a lawsuit. If you let's say, have that recording and give it to the person's employer, or you find their client list and you send it to all of their clients and it interferes with their business. Or they get fired because of that. Whether it's a viable lawsuit or not, could it result in some kind of a negative consequence? Yeah. And even if that doesn't happen, the reason I said yes, no. Yes, obtained it legally, you can use it. You have it legally, you can share it.

Todd Orston:                   But let's say it is a divorce or custody matter, some in family law matter. The risk that you run is that the court gets angry and feels that you acted in a spiteful manner, and that's the only reason that you shared it. If there's some legitimate reason, the person is acting out and being abusive and you think maybe there's a drug problem. And then you say to his family members, "Look, this is what I'm dealing with." Basically, maybe you need to think about some kind of an intervention. That's one thing.

Todd Orston:                   If you're like, "I'm going to show all your family and friends how much of a jerk you are," okay, and that creates a bunch of strife, the court could then look at you, and even though there was bad behavior that was recorded, could be looking at you and be angry that you shared it in the first place, could influence the judge in some way during your case.

Leh Meriwether:             Right. So there could be, if you were to post it on social media, that would not be good.

Todd Orston:                   No.

Leh Meriwether:             Because especially if there's children involved, the children might have access to it. They might be able to hear it. You don't want to, that unfortunately will backlash against you.

Todd Orston:                   And it's, and there it's purely for embarrassment.

Leh Meriwether:             Right.

Todd Orston:                   I mean, you're going to have a hard time convincing the judge you did that for any reason other than to cause the other person embarrassment.

Leh Meriwether:             Right. And so, you don't want to run the risk of you're sending this out to everybody the person knows, of you being called harassing. You don't want that charge to be coming against you. It could be in a civil context, because a lot of courts especially here in Georgia have an anti-harassment sort of standing order that goes in place in every case, and it says, "neither party shall harass the other party." So, this could be considered a violation of that standing order.

Leh Meriwether:             You run the risk of this person is as bad as you say, and you just run out there, even if you share it with a close group, that could cause retaliation in the legal action if there's an action going on, that causes the case to blow up and become more expensive, last longer, and basically that vindication you might have is short-lived.

Todd Orston:                   Yeah. And let me be very clear, I want to make sure that when you talk about retaliation, I want to be very clear what we're talking about. You may be, sometimes the way I put it is if you have to go through the process, it is better to settle than have to go all the way through litigation and go to a trial. And you may be pushing the other party farther away from the settlement table by engaging in that behavior. Because what you've just done is cause them to have some level of embarrassment, or you've harassed them in their minds, and they get angry. And the last thing they want to do is be reasonable and try and reach an agreement. So, by sharing it, again, were you allowed? Yes. Did it carry with it some negative consequences that made it more difficult for you to resolve your case efficiently? Yeah. That was also an outcome.

Leh Meriwether:             I think the only, the circumstance where I might see it being okay is let's say you're getting pressure from your family, "Why are you getting a divorce?" So, let's say it's in a religious context and they say, "I don't understand why you're getting divorced. She seems or he seems like such a great person. What's going on? What's going on?" And you're like, "Well, it's not what you think. There's a different side to this person. And I'd prefer not for you to get involved. Just understand this. I didn't make this decision lightly." And you try to tell them, "Look, I prefer not to pull you in." But let's say they push. Then you say, "All right, if I share something with you, will you keep it between us?" And then you share it at that point, and it's on that kind of one-on-one situation with a particular person. And so your family hears it and goes, "Oh wow, okay. I had no idea [inaudible 00:08:37] every day."

Todd Orston:                   Yeah.

Leh Meriwether:             And you say, "Yes, and I'd like to keep that just between you and me."

Todd Orston:                   Yeah. But in that limited scope and to that limited group, that makes sense. Sharing with a small group of people in order to just show, "Look, this is what I've been going through and why I'm doing this." As opposed to piping it into the intercom system at a Hawks game-

Leh Meriwether:             Wow, I never thought of that before.

Todd Orston:                   Maybe, all right I'm not giving anyone listening any ideas that might actually break the law. So, obviously that's a sarcastic example.

Leh Meriwether:             Right.

Todd Orston:                   But the bottom line is why did you share it? How did you share it? And those kinds of factors are going to be considered by the court and can absolutely have an impact on your case.

Leh Meriwether:             So, I think motivation as to why you're sharing it makes a big difference for the court. And we're talking about an active case. Now, if we're talking about just legally, if you've legally recorded something that doesn't prevent you from playing it, you may get a, if there is no existing lawsuit, it could spark a harassment lawsuit. Someone could try to sue you for libel or slander. Of course truth is a defense. But that doesn't stop someone from filing the lawsuit.

Todd Orston:                   That's right. That's right. People get sued all the time and there are frivolous lawsuits, but it doesn't change the fact that they have to go through months and months, if not years of costly litigation. So, just think about it, and of course going back to legally obtained and illegally obtained, if you have any questions, contact an attorney.

Leh Meriwether:             Yeah.

Todd Orston:                   Because when we say that there's a difference. There's a big difference. If you illegally obtain a recording it can result in incarceration. It can result in criminal charges being brought.

Leh Meriwether:             Right.

Todd Orston:                   Not just civil litigation. So if you have any questions, contact an attorney.

Leh Meriwether:             Yeah, don't do anything without talking, if you have an existing case, talk to your lawyer in that case. Or before you do anything, talk to an attorney. Especially if there's questions of whether that recording's legal. So, you need to be conscious of that. Conscious of what your motivations are. Conscious of how you share this information.

Todd Orston:                   I'm conscious of something. We're out of time.

Leh Meriwether:             No. No. We're not really out of time, but up next we're going to be talking about more interesting cases and situations such as how long can an opposing council delay a modification of custody?

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, 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, we left off with a question about can I share a legally recorded conversation because everybody thinks this person is a great person, and behind closed doors they're not. I think we answered that question. There was a comment at the end of it said, "very narcissistic and borderline." That wasn't, because they mentioned that comment, I just want to, if you're in the middle of litigation and you think this person has those characteristics of those two personalities, personality disorders, you should read the book called Splitting by Bill Eddy. He was on our show before. He had a show called the five, he had wrote a book recently called The Five Types of People That Will Ruin Your Life. And this was an earlier book, but it's a great book if you're dealing with that in a custody dispute or a divorce case.

Leh Meriwether:             All right. Next question.

Todd Orston:                   Next question. All right. How about this one? How long can opposing council delay a modification in custody? The person went on to say, "We're trying to modify custody of our child who's 14 years old. She signed an affidavit and we hired a guardian at litem, and they recommend that she move in with us. It's been 10 months since we've filed and we've yet to go to mediation. Can the opposing council continue to delay going to mediation even after 10 months? And there's been no negotiations during this time, so we're unsure why they need more time."

Todd Orston:                   So, 10 months, nothing's happening. Is that proper? Is it appropriate? Can that just continue to be the norm for those people in that case?

Leh Meriwether:             Well, the short answer is yes, actually I think to all those questions.

Todd Orston:                   Yeah.

Leh Meriwether:             I'm not sure. Is it appropriate? No. Maybe there's a no in there. I don't, it's frustrating. That's probably the best answer. It is very frustrating. I learned from a client, I learned a cool term from a client last year and he said, "I had no idea how that in a divorce case, that things move at the speed of law."

Todd Orston:                   It's fairly appropriate.

Leh Meriwether:             So, he was struggling with how long the case took. Now, can someone, now there are lawyers out there that they don't intentionally delay, they're just busy. And there's these things called conflicts. So, let's say there's a court schedule, and the lawyer's scheduled for multiple courts that day. Well, a criminal case will take priority over a civil case, and an older case will take priority over a newer case. So, those things can create natural delays in the process. It is very frustrating. Now people can create excuses. We've seen people create excuses why things shouldn't go forward. That can create delays. And our court process is a slow process.

Leh Meriwether:             However, there are things that this person can do. And I think that when you have a situation such as this where it's been 10 months, I don't know when the guardian came back with their recommendation. But as soon as there was a hint that there might be a delay, one of the things you can do is go to the court and ask for perhaps a scheduling order. And hat they'll do in that case, and it depends on what judge you're in front of, whether you'll get this. But a scheduling order could state the parties shall mediate by this date. And then after that if they don't settle, they will be on a calendar by this date. And so, that sort of gives you a timeline of events. Now there can be minor things here and there that can delay it.

Leh Meriwether:             The other thing you can do, which we've done in cases where we motioned the court for to waive the mediation requirement because the other side was being uncooperative. And then at court of course the other side says, "Oh," they were denying it at court. Say, "Judge great. If they want to go to mediation, can you issue a scheduling order?" And so we kind of got the scheduling order a back door way by starting off asking to waive mediation. And so, that set it down. We got mediation set in three weeks. And the case actually settled at mediation.

Todd Orston:                   Yeah, and let me say this. I know you, and I agree with you 100%, the legal system can move very slowly, and sometimes it's not due to bad behavior by attorneys or parties. I mean, we have had cases get removed from multiple calendars simply because there were too many cases on the calendar that took priority over the one that we were there for. We've both seen it probably too many times. But if my reading is correct, the people who, or the person who wrote this, they're trying to get primary custody of a 14-year-old girl and a guardian has recommended that in essence they win that argument. Opposing council might be taking the position, "the longer that the child stays with my client who is about to lose custody, the better."

Leh Meriwether:             Right.

Todd Orston:                   So, why do the attorney are the parties might be like, "Why do I have to mediate only to get into a room where I'm going to be told that yes, under pretty much any circumstance, I'm losing custody?" So yeah. "Drag your feet. I don't care. I don't care if this takes another two years." A 14-year-old child, a year goes by, now 15. Then 16. And we're running out of runway in terms of before the child turns 18 and it's a non issue.

Leh Meriwether:             Right.

Todd Orston:                   So, all I'm saying is it doesn't change how you fix the problem or address the problem, which is what you went into. But the motivation could be something less than appropriate or proper. It could be that there's an intent to delay. But we as attorneys understand the system, and we know things that we can do to try and get in front of the judge to move the process along. Because that's who's going to move the process along, your judge. If the attorney or the other party is not doing what they're supposed to do, you have to look to the judge and there are ways to get to the judge, to get, you can't just knock on a door and say, "Judge, I'm ready." So-

Leh Meriwether:             That might get you arrested, actually.

Todd Orston:                   That might get you arrested depending on which door, especially. But you need to understand the process. And even if you don't hire an attorney, you could do a consultation with an attorney. You can just spend a little bit of time and say, "This is the problem I'm dealing with. I'm not looking to hire and retain and attorney to represent me, but what can I do? This is my frustration right now. What are the steps I should take?" And you can at least get that help.

Leh Meriwether:             Yeah. And I'll leave this last little bit in there. Sometimes, you get in front of the judge and you've pushed the issue for whether a scheduling order or asking to waive mediation. Sometimes the judge during a calendar call might toss in a comment such as, "I understand there's a guardian recommendation and an affidavit election that correspond with each other. Why is this case not settled? Maybe you all need to go outside and talk, because if this case keeps going on, I may be awarding attorney's fees to the uncooperative party." So, whether they should say that or not, doesn't matter. I have heard it said in the courtroom. I have won attorney's fees in those situations where someone intentionally drags their feet. So, the advantage they think they're gaining by, "Well, I'll get a little bit more child support," quickly gets eaten up by attorney's fees. All right.

Todd Orston:                   All right, next one.

Leh Meriwether:             Oh, here's a good one. What doc should I get to prove my nephew is better off with me? I took custody of my nephew in October. The mother signed the paperwork. In January I signed up to get the death benefits from his father for him, and that's when the mother got mad and decided to go back for custody. I can't afford an attorney, so I'm asking at least what documents I should have to prove that he is better off with me. The mother never got the child health insurance nor dental insurance. Since October, I've gotten him health insurance and my parents paid over, wow $10,000 in dental bills, which include the child having 17 cavities. The mother's father has hired a lawyer and has sent paperwork to fill out. Please help me by at least telling me what I can help prove that I'd be the better guardian."

Todd Orston:                   All right. So, we're talking about a guardianship case, okay? And-

Leh Meriwether:             We think we do. We're not sure what the paperwork is.

Todd Orston:                   We think. We're not making the assumptions. Correct. So, well, let's put it this way. The reason I'm making that assumption is because if this was a situation where he got custody of the child, there would have had to be, I'm guessing, a termination. I mean, the father died.

Leh Meriwether:             Right.

Todd Orston:                   And I would have had to think that the mother's rights would have been terminated as opposed to now there's joint custody between the biological mother and a third party.

Leh Meriwether:             Right. Unless they won custody in a third party action.

Todd Orston:                   Right, exactly. So, there're very limited ways that that could happen. But nonetheless, let's assume it's a guardianship.

Leh Meriwether:             Okay.

Todd Orston:                   So now, what, and let's also answer the question, instead of focusing on documents, let's just term it evidence. What evidence should you be gathering? Because sometimes it's documentary. Sometimes it's not. The information you should be gathering in guardianship termination case like this, if she's moving to terminate it, you need to look at some of those things that you mentioned. You need to prove that the child is better off with you, that it would be in the child's [inaudible 00:21:02] to remain with the guardian rather than to terminate the guardianship and return the child to the biological mother.

Todd Orston:                   So, things like the 17 cavities. Things like all the medical bills that you have paid with no help from the mother. Any emails and other communication where you've asked for helped, where you have looked to the mother and said, "Please, I know I'm the guardian, but can you give some assistance, financial assistance, other assistance?" Where you have basically been met with a deafening silence where the mother is not helping. Those are, very quickly, some of the things that you want to prove. Because when you're in front of the judge, the argument then becomes, "Judge, this is what I've done and what I'm providing, and what Mom has not done. And therefore it would absolutely not be in the child's best interest to return the child to the Mom right now."

Leh Meriwether:             One of the things that we're going to return from? A break.

Todd Orston:                   Oh, I didn't see it. Did not see that coming.

Leh Meriwether:             So, hey up next, we're going to finish answering this question, and we're going to look at the question of can I apply for a passport of my six-year-old without her biological father?

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 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:             And today we're diving in to some interesting questions where we left off, we were talking about somebody who sounded as if they had guardianship over their nephew and their biological mother was coming back to terminate that guardianship, and they were wondering what documents they needed, and we talked about focusing more on evidence to support their case. I think in Georgia, obviously every state's different. In Georgia, I believe to terminate a permanent guardianship, you have to show there's been a substantial change in circumstances as relate to the child. So, if Mom comes back, let's say Mom had an alcohol issue and comes back and says, "I'm all better now and I need to have custody." That is not the standard, although I feel like sometimes the courts sort of ignore that. That's just a feeling, I'm not, I'm just-

Todd Orston:                   And for any judges listening, I don't agree with that.

Leh Meriwether:             Judges are always trying to do the right thing.

Todd Orston:                   Absolutely. Absolutely.

Leh Meriwether:             Sometimes the right thing may not be in accordance with the law.

Todd Orston:                   No, no, no. And sometimes laws change or they're modified in certain ways, or there are nuances to the law that basically where courts are trying to impose their own discretion as to what they feel would be correct-

Leh Meriwether:             Right.

Todd Orston:                   Or appropriate in a certain case. Maybe it skirts that line and maybe it focuses, I mean that's why there-

Leh Meriwether:             I wasn't trying to say it in a negative way.

Todd Orston:                   No, I'm joking. Oh, I'm not really joking. Just no but, all I'm saying is that, yeah, sometimes there's a misapplication of the law, maybe because the court feels that something would be the right thing to do. But the law maybe has a certain set of requirements that you have to follow.

Leh Meriwether:             Yeah. And I think this is more true of family law than any other kind of law.

Todd Orston:                   I absolutely, well that's also because discretion plays such a big role in family law.

Leh Meriwether:             Right.

Todd Orston:                   Because you can just have this is good, this is bad. This is legal, this is illegal. You're dealing with, okay, Mom maybe is an alcoholic, but Dad does drugs. Okay, you don't have a law that says what happens to the child. Now the judge has to go, "Well, one is bad. The other is bad. Is there a third party that the child can go to?"

Leh Meriwether:             Right.

Todd Orston:                   That the court has to just basically do what it can to protect the child. So, there's so, it's a huge gray area, as opposed to some other areas of the law where there's really not much of a gray area. It's either you followed the law or you didn't.

Leh Meriwether:             Right.

Todd Orston:                   So, all right, next question. How about this one? Can I apply for a passport for my six-year-old without her biological father? My child's father's not on the birth certificate and I have had full custody since the day she was born. He does pay child support but has never attempted at custody whatsoever. Is he still needed to be able to obtain a passport for her?

Leh Meriwether:             It depends.

Todd Orston:                   It depends. It depends.

Leh Meriwether:             I noticed we've had clients, we've seen this struggle before. And if you look at the website for, this is federal law. So, state law doesn't control. And they are looking at the biological parents, regardless of whether that parent has any legal rights.

Todd Orston:                   Right. I mean, right.

Leh Meriwether:             And there's situations where when I see a court order, that's where you get the problem here in Georgia. So in Georgia, if you haven't legitimated, you have no legal rights. The father has no legal rights.

Todd Orston:                   But you don't have an order-

Leh Meriwether:             Right.

Todd Orston:                   That you can attach and when you're communicating with the Department of State and filling out the application, they want a court order that says that you are the only person that has legal rights. I've actually had, I once had someone actually in law enforcement, state level, saying, and it wasn't exactly on this point but it was similar where it was like, "Well, you need to go get an order that shows to the Mom," this was said, "You need to go get an order saying you're the only one with legal rights." There is no such things.

Leh Meriwether:             Right.

Todd Orston:                   A legitimation that shows the father has rights is what would need to happen.

Leh Meriwether:             Right, but only a father can bring that.

Todd Orston:                   That's right. So, for the law enforcement officer in that situation to say to the Mom, "You need to go to court and get an order saying you're the only one with rights," is wrong. So, here the application of that same set of circumstances, it's unfortunate that when you go and you make the application, if you don't have an order that says that you and only you have legal rights, then that may not be enough in the eyes of the Department of State. And then there are other forms if you can't find, I think there's, I'm not going to go into all the-

Leh Meriwether:             There's different types of forms-

Todd Orston:                   Right.

Leh Meriwether:             Or applications online [inaudible 00:27:20].

Todd Orston:                   Go onto travel.state.gov. It's through the US Department of State Bureau of Council or Affairs. You can go onto that website and it spells out pretty nicely what you need to do in order to present an application for a passport. And so, there are different forms that you might need under different circumstances. Best situation is get the permission from the other parent, the biological father. If that person rejects your request, then some kind of a deck action potentially to get an order-

Leh Meriwether:             Although I've heard that, I don't know if it made it into the, into Georgia anyways. This congressional session. But they were talking about changing that law so a Mom could bring an action to deal with something like this, so.

Todd Orston:                   Yeah. Well, it is part of the gray area we were talking about.

Leh Meriwether:             Yeah.

Todd Orston:                   It needs to be fixed.

Leh Meriwether:             It does.

Todd Orston:                   Because there are too many, unfortunately situations where a father has not legitimated, and then upon request interferes with the other parent's ability to travel, even though they have no legal rights.

Leh Meriwether:             Yeah.

Todd Orston:                   So, it does need to be fixed.

Leh Meriwether:             All right, so next question. Can I move for school with my child? I currently have full legal and physical custody of my six-ear-old. I was recently accepted into a prestigious Master and need to move out of state to attend. I notified my ex husband and now he has filed to take full custody of my daughter. He has never truly been involved besides picking her up every other weekend, and is $9,000 behind in child support. He was arrested for his child support obligations last month and the only reason he pays now is because his check is being garnished. Does he stand a chance of taking her away from me?

Todd Orston:                   All right. It reminds me of Dumb and Dumber. Like what kind of a chance, two percent? So, you're saying there's a chance.

Leh Meriwether:             Yeah.

Todd Orston:                   Is there a chance? Yeah. But there's also a chance that you're going to win the lottery. There's also a chance that a comet might fall on your house.

Leh Meriwether:             Yeah.

Todd Orston:                   I hope that never happens.

Leh Meriwether:             I like to look at probabilities like is there a chance it could happen? Yes, there are certain-

Todd Orston:                   It's unlikely.

Leh Meriwether:             Yeah. But is it probable? No.

Todd Orston:                   No. All right, so first of all, any kind of a modification of custody is going to be based on is there a change of circumstance? If you are moving, relocating out of state, then that opens the door. So, there has been a change. But then the courts going to look at, "Okay, why are you moving?" Do you just say, "I love Montana. And I know no one there, but I'm just going to remove our child, and it's absolutely going to interfere with the relationship has with his father or her father. But so be it, I'm doing it." And the court might go, "Know what? I don't really like that reasoning." Okay?

Todd Orston:                   But here you have a situation where the Dad's a little bit of a deadbeat. Dad was arrested for nonpayment of child support. The reason that you are relocating is because you got into a fantastic Master's program which is a furtherance of your education, which the court will absolutely love.

Leh Meriwether:             Right.

Todd Orston:                   All right? And so, all the facts that I'm hearing would lead me to believe that probability-wise, there's a very low probability that the court would change custody simply because you want to go to school and go with your child so you can attend this program to further your education and improve your career options.

Leh Meriwether:             Yeah. So, and I've had a case similar to that where but it wasn't a, they didn't get in a school, but they got an amazing promotion. And the father was not paying any child support at all. He was way behind. And so, she needed more money to make ends meet. She couldn't find a better job here in Georgia because this was at the time of the recession, that big recession in 2008, nine. And so, she moved all the way to Alaska. So obviously, huge move, but the court allowed it partly because they said, the facts sound very similar that Dad just really wasn't involved. And he didn't care to even try to pay child support. Now he's only paying because it's being taken out of his paycheck.

Todd Orston:                   Yeah but I'm even [inaudible 00:31:32] as far as to say, let's say he was paying his child support. Now let's change the hypothetical. And he's paying his child support, maybe even exercising his parenting time, all of it. But Mom then wants to relocate because of this opportunity. Even then I would say, now Dad has a better chance and a higher probability of winning that kind of an argument. But even then, the father's going to be hard pressed to make a strong argument to the court because you have a legitimate reason for relocating.

Leh Meriwether:             Right.

Todd Orston:                   So for me I look at it, there are two prongs. It's is the father doing everything he's supposed to do to co parent and pay child support and all of that? But then the second part is what's the reason behind your move? And if it's because of a great school program, or it's because of a great job opportunity, courts love when you are trying to improve yourself.

Leh Meriwether:             Right.

Todd Orston:                   And improve your situation in life through school, through employment. And I think still, the father would have a hard time winning that case.

Leh Meriwether:             Yeah. And it's going to depend on all the circumstances.

Todd Orston:                   That's right.

Leh Meriwether:             And the court's going to look at everything, and talking about looking at everything, we've got a few more good questions to go over. Like can I file a motion fro contempt against my ex wife? Well, the answer to that's yes. But we'll get into more facts about what that's about, and talk about what to do when a paternal grandmother or grandparent starts sort of interfering with your custody situation.

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 takin 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 webmaster has put together a simple explanation on our web page. 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, atlantadivorceteam.com.

Leh Meriwether:             All right, let's keep going, because we're down to the last segment already.

Todd Orston:                   All right. Who's reading this one. You or me?

Leh Meriwether:             You do.

Todd Orston:                   Me? All right. Because it's the longest one, so we're going to need three more segments to get through this one.

Leh Meriwether:             Just read fast.

Todd Orston:                   All right. How can I deal with the paternal grandmother? My daughter is now five years old. When she as a week old, I dropped her off to her Dad's. When I went to pick my daughter up, she was gone. The grandmother had taken her to Florida without me or the father's permission and refused to answer my calls. I feared calling the police and losing custody because I was a teen Mom, 17 years old. A year later she scheduled a surgery for my child without my permission, which I canceled. I allowed her to take my daughter to a doctor's appointment because I had to work, and she changed all the contact information to hers. She replaced the daycare contact information from mine to hers. Now that my daughter is in elementary school, I asked them not to have any contact with her, and they only need to call me. And she was able to find a way to get her contact information taken down and become the sole contact. What? Yeah. I've been afraid to take her to, I need water. This is long.

Todd Orston:                   I've been afraid to take her to court because she makes 55,000 a year. I only make 25,000. I may lose custody. Her son, which is my daughter's father, is currently out on bail awaiting trial. If the father's away in prison, am I required to have my child see her grandmother? What are my rights and what are her rights as grandmother, and why is she allowed to do all of these things?

Todd Orston:                   She's not. Sorry.

Leh Meriwether:             There's no order.

Todd Orston:                   I'm sorry you had to see me that way or hear me that, I lost control. Grandma does not have these rights.

Leh Meriwether:             Without a court order.

Todd Orston:                   Without a court order. So, if I'm going to assume a few things. If Grandma has never gone to court and been awarded grandparent visitation rights, then she does not have the right to be doing these things. Okay?

Leh Meriwether:             And provided, Mom didn't sign over some guardianship to her.

Todd Orston:                   Correct. If she is taking your daughter during the Dad's parenting time, because Dad's not in prison right now. When he goes to prison, then Dad doesn't have any parenting time, and it doesn't automatically revert to Grandma. Then what you could do is you could, well, let me take a-

Leh Meriwether:             Well, we don't even know if Dad has legitimation rights.

Todd Orston:                   Exactly. I mean-

Leh Meriwether:             If he's legitimated, I should say.

Todd Orston:                   It said, didn't she refer to him as husband?

Leh Meriwether:             No, just father.

Todd Orston:                   Former husband? Okay, we're going to need to, but we'll be back after this. But no, I'm kidding. As we read it one more time.

Leh Meriwether:             No it just says father's.

Todd Orston:                   Okay.

Leh Meriwether:             She referred to him as father.

Todd Orston:                   If the father has no rights, then doubly so, Grandma has no legal rights. But here's the thing. Even if Dad has legal rights, if this kind of behavior is happening and it clearly is in violation of an existing court order, file to modify. Petition the court to modify the order that's in place, whether it is related to Grandma if she has legal rights, or to the father because clearly, this is inappropriate and it's just wrong.

Leh Meriwether:             Well, I don't know how the school, because all the schools I've ever dealt with, they're really strict. They're not going to just let you change a parent's contact information absent a court order.

Todd Orston:                   But know what? If Grandma, I'm-

Leh Meriwether:             She must be awfully persuasive.

Todd Orston:                   Yeah, I'm trying to think of who this Grandma is, and she must be very persuasive. She's doing it.

Leh Meriwether:             Right.

Todd Orston:                   Whether she's allowed to do it or not, she is somehow figuring out a way to consistently, regularly interfere with the mother's parenting rights.

Leh Meriwether:             Right. So let's, if there is no court order, so that all this what I'm about to say is based on there is no court order granting Grandma any kind of visitation rights or anything of that nature. Then you should tell the doctor's office to absolutely not allow, that she is not allowed to have any contact information. And that's a violation of HIPAA. If they release any information to Grandma and the parent has not authorized it, that's a HIPAA violation. And the doctor's office is going to be very afraid of that.

Todd Orston:                   And put it in writing.

Leh Meriwether:             Exactly.

Todd Orston:                   Write a letter to the doctor. Nice.

Leh Meriwether:             Right.

Todd Orston:                   Doesn't need to be threatening, angry. Dear doctor, it's come to my attention Grandma has brought my child to you on a number of occasions and you've released information. Please understand she has no legal rights and I am not giving her any rights to have that information.

Leh Meriwether:             Right.

Todd Orston:                   And so, please do not disclose anything to Grandma and do not change any of the contact information upon Grandma's request. Something along those lines. At least the doctor's office is on notice.

Leh Meriwether:             And I would do the same kind of letter to the principal of the school, should be an elementary school at six, I'm guessing. It could be, I guess she could be in kindergarten. But send a letter to the principal letting him know what's going on, because that can also be a basis for a lawsuit against, I don't understand school law, but I do know that principals do, and they're not going to want to get in trouble.

Todd Orston:                   Yeah. Now, a problem that you may have to deal with, Dad could sign, if Dad has rights, if Dad doesn't have any legal rights. If this is a case where there hasn't even been legitimation, Dad could write a similar letter to the doctor saying, "Look, I have legal rights, and I'm giving my Mom-"

Leh Meriwether:             Right.

Todd Orston:                   "The child's grandmother, rights to take today to the doctor. So, I'm giving that authority."

Leh Meriwether:             If he has those rights. Yes.

Todd Orston:                   If he has those rights. And if he has those rights, there's an order. If there's an order, then the terms of the order are clear. And if it gives you, let's say sole decision-making on medical issues, then you need to once again notify in that letter to the doctor, "Doctor, I'm the only person that should be making decisions regarding medical care. So, if they bring in, and I'm not notified, and tell you to start some course of actions, and I haven't been notified and given my approval, that is wrong. All right. Do not do that. Please contact me if they try and do anything like that."

Todd Orston:                   So, you need to just assert yourself that, what I'm really taking away from this is there is a fear to assert yourself and assert your rights.

Leh Meriwether:             Right.

Todd Orston:                   And that's reasonable. Because you feel like if you're going to go to war with Grandma, and Grandma is clearly not afraid to go to war, that something bad could happen. Just because you make half of her salary or less doesn't mean you're a bad Mom.

Leh Meriwether:             Yeah.

Todd Orston:                   Doesn't mean that you are going to lose custody, because first of all, if it's a fight between Grandma and Mom, you're not losing custody. As long as you're a good mother-

Leh Meriwether:             Right.

Todd Orston:                   And you're caring for your child's needs, then do not be afraid. And if you have that level of fear, I said this earlier, even if you don't hire an attorney, go to a consult.

Leh Meriwether:             Yeah.

Todd Orston:                   Come up with a little bit of money and go sit with an attorney and say, "Here are my fears. Here are my concerns. Should I be afraid? What can I do to protect myself?" And you'll get some great advice.

Leh Meriwether:             All right. I've got, oh man, we have a few more questions we will not get to. All right.

Todd Orston:                   You're going to make the audience feel guilty? I mean this is, come on. It's not their fault, Leh.

Leh Meriwether:             Oh, if you just didn't talk so much. All right. Real quick. Can I file a motion for contempt against my ex wife? My ex wife has filed a motion for contempt against me for the third time in a year. I have had medical issues and laid off from a job, but now I have steady employment. Because of my pay and position change, I'm not making as much money as I made at the time of our divorce, which is why I'm behind in child support. But my situation supports my position and I can get caught up. My ex wife is also in contempt of court herself. Additional income the judge in court did not know about, she has hidden for the last two years, which would have changed the amount of child support due. She has not paid her portion of counseling for our daughter or her portion of private school. Also changed the court-appointed counselor to a counselor who is from her own hometown without informing the court.

Leh Meriwether:             My thought is if I'm in contempt of court order payments and the court can hold me in contempt, then should the court hold her in contempt as well just because she is a women and the primary custodian? This should have no bearing on contempt. Just looking for justification of my thinking or advice otherwise.

Todd Orston:                   Yeah, you can file a contempt, but I usually tell people if your hands aren't clean, if there are things that you are not doing. If you're not in compliance with the same order.

Leh Meriwether:             Right.

Todd Orston:                   You better be prepared that what's going to happen is there's going to be a counter suit filed. Basically the other party will in essence, file their own contempt.

Leh Meriwether:             It sounds like she's already filed one.

Todd Orston:                   Oh, okay. Pardon me. Then bottom line is, yeah, you contempt as well, and the court will hear everything and will probably slap you on the wrist and slap her on the wrist-

Leh Meriwether:             Yeah.

Todd Orston:                   And say, "Hey everyone, this is a court order."

Leh Meriwether:             Sometimes, if it's not some little, to me there's little contempts and big contempts. As long as it's not some little minor violation of the order. When you file that, it kind of muddies the water and the court goes, "You all need to start getting along."

Todd Orston:                   And not following my order.

Leh Meriwether:             Right. And they get mad at both parties.

Todd Orston:                   That's right.

Leh Meriwether:             I've had a judge throw both parties in jail when there was a contempt action.

Todd Orston:                   For very serious stuff-

Leh Meriwether:             Yeah.

Todd Orston:                   Just to make it very clear.

Leh Meriwether:             Right.

Todd Orston:                   Little violations, it's not like judge is just throwing everybody in jail.

Leh Meriwether:             Exactly. And so, on the child support issue, if you come and say, "Here's my plan to get current," that's going to help keep you out of jail. Now on her end, I would bring him, I mean from the little information I have right here, I would probably file a counterclaim for contempt.

Todd Orston:                   Me too.

Leh Meriwether:             Now, what he can't do is, I don't think he can go back and talk about the other child support or her hidden income. He needs to file a modification of child support.

Leh Meriwether:             And one thing we can't modify is the amount of time we have. So, unfortunately we have fun out of time today. Hey everyone, thanks so much for listening. Tune in next week, and we're going to talk about some really interesting divorce question.

Speaker 3:                        This audio program does not establish an attorney-client relationship with Meriwether and Tharp.

 

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