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Episode 63 - Exploring Tough Child Custody Situations and How to Handle Them, Part 1
Todd: Every week in this show we try to provide as much information as we can about the divorce process, about how to fix problems in your marriage, how to try and avoid divorce and, if you can't avoid divorce, how to deal with the divorce in such a way to hopefully not prolong it. To try and deal with it in as effective and efficient way as possible. Sometimes we approach it by just going over a topic. We'll talk about anything. We'll talk about alimony. We'll talk about child support. We'll talk about general topics, but sometimes we find that it's better, or as good, to go over specific questions that people have. We've done this a few times, and it resonates with people because, oftentimes, just by hearing someone's problem, and then addressing it, other people can learn. That's what we're going to today. Actually, we're going to do two shows about answering people's questions, and hopefully it's going to educate people as to a whole bunch of different issues relating to, for these two shows, custody.
Leh: Well, welcome everyone. I'm Leh Meriwether and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7.
Leh: As Todd said, here you will learn about divorce, family law, tips on how to save your marriage if it's in the middle of a crisis, and, from time to time, even tips on how to take your marriage to the next level. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Leh: Well, Todd, today-
Todd: You're excited.
Leh: Yes, I am. I'm always excited. We put together some questions that we've received from people, and some of these actually have been posted online in different forums, and find that, like you said, using people's situations to answer them on the air but then for others to use to maybe apply to their situation.
Todd: It's funny because people will call and they naturally think that their situation is unique, but being that we deal with these types of cases day-in-day-out, there are a lot of similarities. What makes your case unique in your mind is actually probably something that many, many other people have already dealt with. We have found that this is a great way to educate, a great way to let people know, hey, other people are A) dealing with these issues, and B) this is how they were handled successfully in those situations.
Leh: The questions we're going to give a general answer to, they're obviously limited, so if the person listening to this is like, "Well, that was one of my questions," the information we're going to provide is very limited in nature, meaning that we don't know all the facts, typically. Usually people will present a question, and we get limited amounts of facts, so our answers are really limited by the amount of information we have.
Leh: What we say ... We've had this before where someone will call in and explain their situation, and we will give, "Okay, here's our plan of action." They'll come in, they'll retain us, and then we get to work on their case, and then we realize they left some facts out. Not because on purpose, not because they're lying. They just didn't realize they could be important. Then, all of a sudden, as soon as we learn these new facts, the plan of action changes because maybe the legal issues have changed now, maybe the fact issues have changed, maybe we've got a judge now that we understand how this judge rules on certain issues. Again, the situation may have changed when the divorce was filed. It changed how we were going to approach the situation, so I want to give that caveat before we get going.
Todd: Well, now that I understand, let's start.
Leh: All right. Who's going first?
Todd: You start.
Leh: All right. This is for you, Todd.
Todd: Get softball. Give me an easy one to start.
Leh: Let's see. I'm going just going to read the question. I don't know if it's easy or not.
Todd: All right. Sounds good.
Leh: All right. "What can I do to get temporary custody over my daughter when the mother is threatening to take her away?" That's sort of the big, broad question. Here's some more facts. "The mother has not wanted to see the child in four months, then I asked if ..." Okay, I'm going to have to rephrase this part. I'm sure some of the times when people were asking the question, they're typing on their smartphone, so give me a second make sure I ... Maybe I should have rewritten this question before-
Todd: No, take your time. It's a seven hour show, so you have plenty of time.
Leh: That's right. All right. "The mother has not wanted me to see the child in four months, then I asked if I claimed her on my taxes. When I said yes, she called the cops."
Todd: How about we just deal with the overriding question of what can I do to get temporary custody over my daughter. I'm looking at the explanation, and, basically, what's standing out to me is that there was no contact between the mother and the child for a period of four months. There's also an allegation that the mother is on drugs. The other thing that I'm taking away from this is it doesn't sound like this is a divorce situation.
Leh: Right. That they weren't married.
Todd: That they were not married. Really, that, unfortunately for the father, limits a lot of what can be done.
Leh: Yeah, so this is a really unfortunate situation because if he has not legitimated his daughter, even though he may have been the one primarily taking care of her because of her drug use, she can just walk in and take his daughter.
Todd: Yeah, and there's some more information here that he was told ... because it appears that he had the child with him ... that he was told that he has to give the child back, which is accurate. Starting at the very beginning, we're dealing with a legitimation action. Legitimation-
Leh: In Georgia.
Todd: In Georgia-
Leh: And most states have something similar.
Todd: Right. If a child is born out of wedlock ... starting at the very beginning ... then, basically, the mother, as the parent who is clearly the biological parent and gave birth to the child, automatically has legal rights to that child. The same cannot be said for the father. In this kind of a situation, with the question being what can I do to get temporary custody ... If this were a divorce we would approach it a little bit differently ... Here he still has to deal with the legitimation issue because until that happens then he doesn't have the right to fight for custody, so, you're right, he's behind the eight ball and still has to establish paternity and legitimate, which will then open the door to him fighting for custody.
Leh: I'm going to throw a wrinkle in there. We don't know these facts, but so-
Todd: I'm going to knock it out of the park.
Leh: This was the daughter ... sounds like the daughter ... Oh, four months. Well, let's say the daughter was four years old, and he hadn't legitimated, at least in the court system. Four years ago in Georgia we had what's called administrative legitimation. You could sign on the birth certificate ... and this is an important point ... just because you signed on a birth certificate doesn't make you the legitimate father, at least here in Georgia. There may be some other states that are different, but here in Georgia, doesn't make you the legitimate father. They had this thing called administrative legitimation where you could sign on the birth certificate, and extra section, which they've done away with here in Georgia. It's not here anymore.
Todd: It's not automatic. It's not-
Leh: It's not automatic.
Todd: Okay, you sign papers at the hospital and, therefore, "Yep, I legitimate it." You still have to go through the formal step of a formal, legal legitimation action so that you can take that acknowledgement of paternity, and that becomes evidence that you use to establish paternity, and to legitimate, but you have to go through that step.
Leh: Sometimes you can legitimate before you ... without even a ... Let's say you have a boyfriend and girlfriend living together. They can go legitimate without actually getting a parenting plan in place. I think, no matter where you are as far as whether you legitimate it or not, you need to go to court, and you need to get what's called a custody determination. You need to have a court order saying that you are the primary custodian if mom truly does have drug issues that are presenting a problem, a safety issue, for the children, or the child, when the child's with her. Then you need to get an order that may result in supervised visitation for her.
Todd: Now, I will say this. That does not mean that this gentleman does not have any recourse.
Todd: If he truly believes, and he believes the evidence will show, that the mother is actively using drugs, there have been periods of no contact between the mother and child, he can go to DFCS. He could go and he could-
Leh: Child services.
Todd: To child support services, and he can file, basically, a complaint or-
Leh: A dependency action.
Todd: Then they will investigate if they find that the child is dependent, is-
Leh: Dependent on the state.
Todd: And is in need of some intervention by the state, then that will happen, meaning the state ... the DFCS, child services, protective services ... they will step in. They will potentially even take the child away, but during that time ... like you shouldn't just sit back and go, "Okay, I spoke with-"
Leh: Went to DFCS, so give me my son back or daughter back.
Todd: Right. You should be using that time, while that investigation is happening, to be filing legitimation action and moving forward with that, so that by the time DFCS gets around to doing what they need to do, finishing an investigation and potentially removing the child from the mother, that you have already filed something and maybe the court can then place the child with you.
Todd: Well, thank you very much. Are we done? Can I go home?
Leh: No, not yet.
Todd: All right.
Leh: I've got lots more questions.
Todd: More questions.
Leh: Here's one for you. "Can I take my son to the Bahamas without a letter of consent from his father when I'm the primary custodian?"
Todd: Well, I would love to jump in.
Todd: But I think we have to take a break.
Leh: Up next, you're going to hear the answer to that question and many more.
Leh: Well, Todd, from now on you're at-
Todd: Oh, my god.
Leh: I printed the questions off the internet, so you can ask them.
Todd: Oh, I can ask the questions.
Leh: Yes, because I literally tried to read it and it didn't make sense.
Todd: I think you blacked out for a minute. I don't even know what happened.
Leh: Sounded like I was having a stroke. The words didn't make sense.
Todd: I'm going to speak slowly. The last question that you were bringing up was "Can I take my son out of the country, specifically to the Bahamas, without a letter of consent from his father when I am the primary custodian?"
Todd: The writer goes on to say that ... in essence, I'm summarizing ... that the father can be difficult.
Leh: I want you to read it.
Todd: No, we saw how well that worked. That the father can be abusive and hurt me any way that he can. They had an agreement ... basically, taking in to consideration this trip ... that she could have a couple of weekends in a row, and now, all of a sudden, he's saying that he won't sign the necessary paperwork.
Todd: Take it away.
Leh: All right. Well, here's the thing. This falls into federal law, and the states can't trump federal law. Federal law always trumps state law, and when you're in family law court, that is state law, so it's state specific. The first thing is, unless your son already has a passport, you will need his consent. Now, you could go back to court. If it's not spelled out in your parenting agreement, you may have to go back to court to get it spelled out. Make it very specific that you're allowed to take your son out of the country and that the husband, or the father ... I don't know if it's ex-husband ... but the father has to cooperate with whatever it takes to allow that to happen. The court may have control over him but doesn't have control over the passport situation.
Todd: Sometimes it's not just a passport. The child might have a passport, but sometimes there is additional documentation that ... If, basically, a certain form is not signed by both parents, that can prevent the child from being released. In essence, you're going to get to the gate, if you will, and they're going to be like, "Okay, do you have the necessary paperwork? Do you have the permission slip?" And if you don't have everything in order, they're going to say "Well, we're not going to let the child get on the plane, get on the boat," do whatever, and the trip is off.
Leh: I think the only other exception ... I believe, unless the law has changed, that federal law allows one parent, if a parent has sole physical and legal custody ... but that's got to be in a court order ... then they don't need the permission of the father. If it's spelled out that way in their custody agreement or parenting plan.
Todd: I will say I have seen people run into problems, though, with that. I've seen situations where a child has not been legitimated, sort of like we were talking before, and-
Leh: And dad has no rights.
Todd: Dad has zero rights, yet the biological mother is trying to do something, whether it's leave the country or just accomplish something, and is being prevented because the governing agency is like, "Well, do you have anything from the father?" When the response was, "Well, no" ... But the father hasn't legitimated. There is not legitimation, therefore he has no legal rights ... They've shut those people down. In other words-
Leh: Right, and that's because he has no rights under state law. The federal government looks at it differently.
Todd: Exactly, so the best advice I can give you ... First of all, I will tell you, absolutely, if you know you have a trip coming, get something in writing. If it's a legitimation issue, meaning if ... Whether or not the child has been legitimated, whether you are the father or the mother, get something in writing that shows both parties are approving of that trip. If you know it's going to be a fight, or if you've spent a whole bunch of money and you fear that you might get down to the wire and then, all of a sudden, the other parent is going to try to interfere with you being able to take the child, or children, out of the country, then you need to do something formal, meaning you need to go to court.
Todd: I will tell you that most judges, unless there is evidence of a flight risk, is going to allow the trip to occur. If you're the one trying to make it happen, the judge isn't going to have a problem with a trip to the Bahamas, let's say, and actually will probably get angry that the other parent is being an obstructionist in this, so do it ahead of time.
Leh: There's two takeaways from this because one fact that I didn't lay out there was that the person asking the question has already planned for, and paid for, the trip, which that can be huge. Before you plan for, and pay for, a trip out of the country, make sure you have all your paperwork lined up when it comes to custody. That's number one. Number two, if you're in a situation where you've got an uncooperative parent, or there is even the remote possibility that the other parent's going to be uncooperative, meaning ... We see a lot of divorces that the parties don't get along anymore, but they're very amicable when it comes with the kids, so there's no concern about passport issues, but have those ones where, "Man, I see a problem." Then get written in your parenting plan that you can take the children out of the country.
Leh: Now, I have seen situations where they listed which countries were okay. I had one where they said trips to Canada, the Bahamas, the Caribbean were all acceptable, but trips to other countries were not acceptable, and it was really tied to the Hague Convention because some countries don't honor what's called the Hague Convention. We won't get into that in this show, but that, basically, if you're a Hague country, you're going to honor a custody order from another country.
Todd: All right. Do you want me to take this one, or do you think you can muddle your way through-
Leh: I want you to read this one.
Todd: You want me to read this one? All right.
Leh: I want to see you stroke out this time.
Todd: The question is, "What are the odds of my husband getting custody of his daughter?" The facts being that they went through a divorce, and the mother was originally granted sole custody. The ex-husband, who is now remarried, and I believe this is being written by the ex-husband's new wife ... "My husband, basically, had visitation, but after four days was unable to see his daughter because the biological mother kept the child from him, but six years later we finally have the money to go through court and seek custody because the mother abandoned the child and left with her boyfriend."
Leh: Left the daughter with her-
Todd: With the ex-boyfriend, right. "Still getting child support from my husband." Here's the thing. Very quickly, I will say waiting six years is a problem. I understand financially that you may to be able to do it, meaning you may not be able to do it with the help of an attorney, but you run the risk of losing all rights, and losing any ability to make a valid, strong argument to a judge, because the judge isn't going to accept "I didn't have money to hire an attorney, so I went six years without seeing my child." You have to act immediately even if that means doing it on your own, filing something on your own. Now, here the facts may be-
Leh: A little bit different.
Todd: A little different, and if the child has been abandoned by the biological mother, and is now with a boyfriend who has no biological connection, or legal connection, to the child, then the father may be in a better situation.
Leh: The first thing I would do ... Let's go back in time a little bit because part of this is to teach how to be preventative. As soon as the dad was not able to see his daughter, he should have filed a contempt. You do not need a lawyer to file contempt. If there is a parenting plan order somewhere that says dad has time with his daughter during these periods, and mom says you're not getting your daughter, you don't need a lawyer for that. It is very straightforward, file a contempt, have her served by the sheriff's deputy. The cost is minimal. Just go in there and say, "Judge, she's blocking me from having parenting time."
Todd: In terms of costs being minimal, there's actually no filing fee. When there's a contempt-
Leh: There shouldn't be.
Todd: There shouldn't be. In most jurisdictions, at least in Georgia, there is not cost of filing a contempt.
Leh: You have a $50 fee for the sheriff's deputy doing the service.
Todd: Exactly, so you're right, cost is minimal, but you won't want this to go more than 30 days or so. You want to act quickly and put the kibosh on that interference.
Leh: The second thing is, if the daughter was with the ex-boyfriend, there is no court order there, so if dad knew where the child was ... I'm making an assumption here at the moment ... Let's say dad knew that the child was with the ex-boyfriend, show up to the house, call the sheriff's department and say "I'm here to pick up my daughter. Here's my order." Make sure it's a certified copy of the order, and most of the time, the sheriff's department, or local police department, will assist you in getting your daughter, especially if there is a person there that has no custodial rights to this child.
Todd: I mean, obviously, if it's a babysitter, or if the argument becomes the biological mother, let's say in this situation, is coming back and will be back in 20 minutes, the police aren't going to do anything. If it's mom hasn't seen the child in two years, then you have, obviously, a strong argument.
Leh: Now, the other thing is, what may have happened here, which I've had happen before, was that the mom disappeared with the child, so maybe six years later, they finally found where the child is and where mom ... They finally found her, so that's a little bit different situation, and let's address that up next.
Leh: Welcome back, everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Leh: Now, today we are answering questions that we have gotten, focused primarily on custody. Where we left off was a situation where a husband and wife got divorced. Basically, mom took off with the daughter and then left the daughter with an ex-boyfriend. Then took off, kept collecting child support payments, and now they have found the daughter who is with this ex-boyfriend, and they want to file an action to get primary physical custody. The question is what are the odds of winning custody?
Leh: I think, going back to your point, Todd, if they delay of six years is partly because they didn't know where the daughter was, I think your chances go up, but then ... I mean, there's still that question of why didn't you file a contempt in the six years, and everything, but if you've got some legitimate answers for that, I think your odds of winning are pretty good. I think one of the challenges, if you don't know where mom is ... Let's say child support services has been collecting your check every month, and you don't know where it's going, and you don't know where mom is, you have to serve mom. That could be a challenge.
Todd: Absolutely, it could be. Now, first of all, I don't want any listeners to think that the opinions that we are offering are that you do nothing under this situation. In other words, it's been six years ... I don't care if it's been 12 years ... If you suddenly know that your child is potentially in a dangerous situation, has been abandoned by the other parent, you still have to do something. My point-
Leh: Or you should do something.
Todd: Yeah, my point is simply that that is not a good fact in your favor. It can be overcome, but just understand you're going into it with a couple of cards stacked against you.
Leh: And you just have to be prepared to explain the delay.
Todd: That's right. The first offer is that you have to act quickly, we've already said that. What does that mean? Really what we're talking about is a modification action. Here, we're assuming that there is an order in place. You need to change the terms of that order. If you can't find the mom, which by-
Leh: You should be able to.
Todd: You should be able to, but let's even assume mom has literally disappeared, and we have no idea. We can't find her. At that point, you might have to go through, let's say, DFCS. You might need to do something else, where DFCS could, technically, step in and say that the child is dependent-
Leh: Although, I still don't know how the ... The mom's ex-boyfriend can't keep dad from getting custody. The interesting thing, if mom's not around, dad should be able to show up and pick up his daughter and have his daughter with him, and unless mom shows back up to pick her up, the ex-boyfriend doesn't have any authority to pick up the daughter.
Todd: Going back to what I said before, that's how it should work. The police should show up and be like, "Sir, do you have an order that gives you custody. No, you don't. Well, then I'm going to order you to release the child to his biological father." Until the mom then steps back in-
Leh: To the picture.
Todd: To try and fight to get the child back, you have custody.
Leh: Yeah, and I would recommend, before you even file to change custody officially on paper, I would go get your daughter-
Todd: I agree with that.
Leh: And bring her home, and then file the modification, so when mom does show up, you have a court order saying "You abandoned her."
Todd: Yeah, and here's another situation where waiting does not look good for you because let's say you find out this has happened, and you say, "I just don't have the money to file." A week goes by, a month goes by, a year goes by, then the courts look at you going, "Why should I give the child to you rather than, maybe, the maternal grandmother?" Or some other relative who steps in and says, "Hey, the child knows me. I will be the caretaker until mom steps back."
Leh: Let's go to the next one. I think we have thoroughly dissected that question.
Todd: I think we have.
Leh: All right. "Me and my wife have been separated for three months. I have heard that she is on drugs. How do I get temporary custody of my son?" What I'm hearing is nobody has filed for divorce, if I'm reading the rest of the facts ... I'm not going to read the question.
Todd: Please don't.
Leh: I'm just going to parse out the facts, as I read them. That they separated. Nobody's filed for divorce. Dad is, or husband and dad, continue to pay all the bills where they lived, even though he moved out. Mom was supposed to get a job, but she didn't. Now, he is worried that his son is with a mom who is doing drugs. Apparently, she's going to a methadone clinic twice a week. What can he do?
Leh: Well, first of, when you're still married, each party has a 100% interest in their children, which means that he can go over there and pick up his son from his wife, and the police can't do anything. It is not kidnapping, or anything like that. There is nothing in the law that says when the parties are married that mom gets custody over dad.
Todd: But, what we don't want is a situation where you go over there, say, "I know you're on drugs. Give me my child." Or "Give me our children." Then you are forcing that issue because that's when the police end up getting called, and the police aren't going to do a drug test. The only person who's going to look like the bad guy is you, who is standing on the porch yelling and screaming about how you want your child to be released to you, and the mom is saying no. You're the one who is actually creating the problem, so-
Leh: I think you have to be ... The point being here is you can't just rush in and take your son. You have to be smart about it.
Todd: You have to be smart. You have to strategically think things through. My opinion-
Leh: I will say, because if she is on meth, there are periods when mom disappears ... and this is where it's being smart because we've had too many cases where the dad, or the mom, or the grandparents came in, and the children had been in the house all alone for days. One of them was dumpster diving to feed the other ones because mom, or dad, was off on some drug binge, and they were gone. If you find this out, and you're trying to avoid an altercation, you ... This is only specific to these facts. You've got a mom who has a serious drug problem when she goes on a binge, you go get the kids.
Todd: Now, I will say this. I often say to someone ... because here they are separated ... people will come to us, and they'll say, "Do I need to get a divorce?" or "Should I file for divorce?" I always tell people it's not my position, or place, to tell someone when it's time to file for divorce, but if you get to a point where your children are in jeopardy, and when you get to a point where you know that there really is no reconciliation, then procrastinating. It usually, I mean 99.-
Leh: Especially if the kids are in danger.
Todd: Right. 99.999% of the time, it does not benefit you to procrastinate and not go ahead and file for divorce. Once you file for divorce, then there's a judge who's now involved in the case. You now have the ability to go to the court and ask the judge for some assistance. Under these facts, at that point, you'd be filing ... My advice to him, let's say he was with us, sitting before us, we'd be saying you need to file for divorce immediately. File for an emergency motion with the court. Let's get the mom served as soon as possible. Then we can ask the court to do drug testing. We can what we-
Leh: And the court will order that.
Todd: And the court will order it. We will make sure that the children are protected. The courts, that is their priority. I'm not saying the courts don't care about your finances or don't care about division of property, but I can tell you right now, they're absolute priority is the safety, and health, and welfare of a child.
Leh: Exactly. One other thing to add here. There is another option besides divorce. It's a separate maintenance action. We don't always recommend it, but if you have situations where ... and this is where it typically occurs ... You've got a parent that has a strong faith and doesn't want to have to file for divorce, but they feel like they need a court order to protect their children, so they file a separate maintenance action. The court can come in then and say dad's going to pay these bills. Mom's going to take care of these bills. Dad's going to pay child support during the pendency of the separate maintenance action. Mom or dad's going to have temporary custody of the children. You can get a court order that way. There is an alternative to the divorce.
Leh: Now, I will say that probably 9.5 times out of 10, that separate maintenance action converts to a divorce, but there are an occasion where that is the eye-opener. That is the proverbial punch to the gut to the other party, and they turn their life around. It doesn't happen that often, but it does happen.
Todd: That's what I'm saying. Oftentimes, I'll say to people "What is your ultimate goal here?" If your goal is to give that proverbial punch to the gut, the wake-up call, and maybe the person will change their ways, turn into the person that you originally married, and you guys stay together and everything goes back to a healthy relationship, then great. Fantastic. Don't rush into a divorce. But if you are coming to us, or if you are in a position where you are 100% sure there is no salvaging, there is no fix, then procrastination and, not only that, going the path of a separate maintenance action, doesn't make sense. You're wasting time and effort. Just go ahead and move forward with the divorce.
Leh: It depends on what your goal is.
Leh: All right. Next, let's see. Got a question from a dad who has some step-daughters, and apparently the biological father is nowhere in the picture, and he wants to know how ... that's twin 16-year-old girls ... "How can I give my last name to these two girls?" Up next, we're going to answer that question.
Leh: Welcome back, everyone. I'm Leh Meriwether, and with me is Todd Orston. Todd and I are partners at the law firm of Meriwether & Tharp, and you're listening to Meriwether & Tharp Radio on the new Talk 106.7. If you want to learn more about us, you can always call or visit us online at atlantadivorceteam.com.
Leh: Well, this whole episode we have just, basically, been answering people's questions about child custody, different child custody questions, some unique situations that ... many of them really unfortunate. We're kind of breaking down what some of them can do early on before things got really bad. Basically using these questions to teach about child custody. What the courts can do to remedy certain situations, and what they can't do.
Leh: Where we left of where there was a husband who had married his wife, but he was not the biological father to two 16-year-old girls. They were twins. He wanted to know how can he get his daughters to take his last name, change their last name, because the biological father is not in the picture, has never been in the picture ... it sounds like ... for 16 years. He does pay child support even though he doesn't see them. What's-
Todd: Basically, it's a legal name change action, but the twist, or the catch, is that we're dealing with children. Basically, the response I would be giving this person is you need to get the consent of the biological father.
Leh: Right. Even if he hadn't been in the picture.
Todd: Even if he hasn't been in the picture. That's the unfortunate situation. Now, let's assume he gives that consent. Then it's a very simple matter. He signs the necessary consent. It gets filed along with the necessary name changed documentation, and the name change will occur.
Todd: Let's assume, now, that the biological father says, "Over my dead body." Well then, fighting that fight does not make sense because, more than likely, the court's not going to grant that. The court's going to allow the children to keep the biological father's last name.
Leh: I mean, it's mainly because he's paying child support.
Todd: That's right. There is some connection there, but the silver lining is that these kids are 16-years-old. That means in less than two years, when they turn 18, then they're not children. Even if they are still in high school at 18, you should be able to go to court-
Leh: Or they should be able to.
Todd: They should, right. The action is really initiated by them, the adults, who are initiating a name change action. At that point, that legal name change action for these two children can be brought, and the consent is no longer required.
Leh: Right because they're adults now.
Todd: Because they're adults, so the silver lining is we're not talking about 6-year-olds. We're talking about 16-year-olds, but it really is going to require maybe some nice talking to the biological father to see whether he will grant his permission for the name change to occur.
Leh: Now, they use the words "last name," but going back to what we do, what is their ultimate goal? What are they really trying to achieve? Sometimes it's more than just a last name. We've seen this before where the step-father really has been their father, from day one. In fact, they call him father because he's been there for everything. While the biological father may have been paying child support, that was the extent of his involvement in their lives.
Todd: Well, and that's these facts. Here he says that "The biological father has not seen my daughters" ... it's interesting, he refers to them as "my daughters" ... since their birth 16 years ago.
Leh: Right, so it may not be a name change that he really wants. It may be-
Leh: It' called a step-parent adoption. Now, again, you need the biological father's consent, but in that situation the biological father ... If he allowed the step-parent adoption to go through, his child support obligation would go away.
Todd: That's right.
Leh: So, that is an option.
Todd: Sometimes, let's say a parent ... And this is where an attorney can step in and strategically help formulate the arguments that are going to be made when discussing this and broaching the subject with the biological father ... Understand that adults can be adopted, as well, so going back to the same point that I made where, in less than two years, these two children are no longer children. At that point, they, themselves, can consent to being adopted by the step-father, in which case the same goal is accomplished. You can bring that up in discussions.
Todd: In other words, if I were the attorney, I'd be calling the biological father, if the biological father were putting up a fight, and I'd say, "Look, you haven't seen these children in 16 years. I'm glad that you pay child support and did the right thing as it relates to supporting them, but you have zero relationship, and I'm just telling you right now that when they turn 18, the adoption's going to occur. You can either be the legal father for another year-and-a-half and keep paying child support just work with me. Work with the children and their mother, and let's just get this adoption taken care of, and you're going to save money."
Leh: And you can save hundreds of dollars, yeah.
Leh: Well, we have some more time. I'm going to hit two questions because I think we have time for two more questions.
Todd: I think we can do it.
Leh: If you're quick.
Todd: Oh, I doubt it, but I'll try.
Leh: All right. Well, the first one's an easy one. "How do I get a copy of my settlement agreement regarding my child custody that was ordered in my divorce? I have a divorce decree, and it refers to the settlement agreement, but it doesn't include the details to it." So, how do they get it?
Todd: Yeah. You need to go ... If you know the county in which the divorce was finalized-
Leh: And they should if they have the divorce decree.
Todd: Exactly. Then that same document would have been filed with the court. If it's a relatively recent case, then the clerk, the main office, probably still has the file. If it's an older case, sometimes the case gets put into archives. Depending on the county, if it's a smaller county, they don't usually have a different department. Some of the bigger counties have separate departments where you then have to go there, make a formal request. You give the case number, case name, and then they will give you access to the file, and you can get a copy of the settlement agreement.
Leh: Right, and at that point with a parenting plan, whatever it is, at that point you're probably going to want to go and get it certified, so you have a certified copy of it. If you don't have it, you definitely want to get it.
Leh: I had a case one time ... I probably shouldn't go into this, but it was an interesting case, so ... Our client, her husband handed her a specific parenting plan that said that they had 50/50 custody, so she said, "Okay, I'll sign off on it." Then he said, "All right, well, go sign the original at my lawyer's office." She goes to his lawyer's office, signs what she thinks is the same parenting plan, but this parenting plan gave him primary custody, and she only got every other weekend. Now, if that weren't enough, for two years, they followed the document that he handed to her, and then when he got mad at her one day, he stopped doing the 50/50 custody, and he said "You can't have them." When she came over to get them, he showed the police the one that was actually filed. She never got a date-stamped copy.
Todd: In that situation, very quickly, you can either move to try and set it aside, but so much time has passed that really our option becomes a modification action-
Leh: Which is what we did.
Todd: Where you go in front of the judge and say, "Look, whatever happened happened, but for two years they've been living under this agreement, and now all of a sudden he's angry and is trying to change it to something."
Leh: It's not in the children's best interests.
Leh: We did get it changed back to what it should have been, but that's why it's so important to make sure you have what is on file at the court house.
Todd: For the record, I was quick. You dragged this out, so-
Leh: I did drag it out. All right. Well, this one shouldn't be too long. You're going to answer this one.
Leh: All right. "Am I legally obligated to let my child's father come to my home? Will I get in trouble by a judge if I refuse?" Now, this one there's a long set of facts, but I'm going to parse them down. Basically, in their custodial agreement, they're supposed to exchange custody at a certain location, not at the house, but it does say in here that each of them are to give the physical address where the children are residing when they're with either parent. He's insisting on coming over to the house to look at it, and she wants to know "Can I say no, you can't come in the house?"
Todd: Very quickly, I will say no. You do not need to let the father come to your home, and come to your home, to exercise parenting time, but do not take that to mean do not allow the father to exercise parenting time. If you interfere with the other parent's ability to exercise parenting time, that looks bad on you. It reflects poorly, and the judge will think that you are not a good co-parent. That can impact the findings of the court, ultimately, as it relates to custody. Really, what my answer would be is, you do not need to let that person come into your home if you don't-
Leh: Or even on our property.
Todd: Or on your property, but then come up with an alternative. Don't just shut the person down and say, "No, it's not going to happen." Say "No, you are not coming over to my home, but, hey, why don't we meet at the local whatever."
Leh: I think that's what they had been doing.
Todd: Right. That is absolutely reasonable.
Leh: Well good. That was quick.
Todd: Well, I'm sure you're going to keep talking now about something else.
Leh: I am not going to keep talking because that about wraps up the show, and if I kept talking we'd run out of time, and then I'd just get cut off, and we don't want that to happen.
Todd: I fall asleep, and all sorts of bad things happen.
Leh: Yeah, we don't want to do that.
Leh: Hey, everyone, thanks so much for listening. If you want to read more about us, if you want to find more about child custody and want to understand this a little bit more, or you've got someone that you know that's going through a difficult time and needs more information, go to atlantadivorceteam.com to read more. You can also go online and hear re-broadcasts of this show in Sound Cloud and in iTunes and most podcast directories. Just look for Meriwether & Tharp Radio. Until next time-
Todd: Thanks for listening?
Leh: Thanks for listening.
Recorded Voice: This audio program does not establish and attorney-client relationship with Meriwether & Tharp.