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Tue 14 Oct, 2003 03:03 pm
I have a problem that I'm hoping some of you can help me with. This is a long story so bear with me.
I took my ex to court about 4 years ago for full custody and child support for my son. I was awarded full physical custody and half legal custody and even though the judge wanted to give me more child support I settled for much less than I was entitled too because at the time I had my own business and was making more than my ex. I had it set up so that my ex's work was to pay me my child support since I knew how irresponsible my ex was. My ex never willingly gave me a dime in child support, but I waved the 12 years worth of back child support he owed me in court since I was doing ok financially. A little over 3 years ago my son and I moved from Mass to Canada. I really didn't have much of a choice as far as moving because my mother (who I lived with and shared living expenses) was retiring and moving to Canada. My mother worked days and babysat for me so I could work nights and there was no way I could afford a place on my own and pay a babysitter and since my ex could barely give our son the time of day when we were there, I thought that moving to Canada would be the best thing for our son. When we lived in Mass I was always worried when my ex would come and pick up our son because he was known for drinking and driving with him. Unfortunately, I couldn't prove it because my son wouldn't tell me until months later. Anyway, the move to Canada did turn out to be the best thing I could have ever done for my son, but there have been many obsticles for me. One of my problems is that my son has never been able to learn anything in public schools, so I was forced to take him out and home school him where he's doing very well. Unfortunately, I don't have the time to teach him and work, so I'm basically living off my child support which isn't much and the payments are always late. I found out that my ex's work has been giving my ex my support instead of depositing it themselves as it set up on the court order, which explains why my support is always late. I am also in a position now that I need the maximum support, so I'm waiting to hear from my lawyer who I want to get me a court date. I've asked my ex for help, but as I said before, he never willingly gave me a dime and he's trying to tell me that a judge would never give me more because I left the country. My ex never had a problem with us leaving until now where it's coming down to money like it always was. My ex tried to come up here last April to see our son, but they wouldn't let him across the border because he was on probation for drunk driving, so I agreed to allow his wife to come and pick up my son and bring him to Maine to see his father for a few days. I wasn't comfortable with the idea, but since my son was almost 16 I knew he was smart enough not to get into a car with his father if he was drinking, so I let him go. Unfortunately, I didn't know that my ex was going to give my son booze and get him drunk. My son doesn't drink or do drugs, so I was beside myself, to say the least. I know that until my son is an adult, I will not let him see his father unless I'm there for obvious reasons.
What I'd like to know is if anyone sees a problem with me going to court again for more support? Do you think the judge will turn me away since I left the country? I don't want to waste my time and money making a trip if I don't have any chance of getting more support.
First I'm sorry Montana! Bad situation to be in.
I think you have a hung up-hill battle before you, the court or judge may not think so kindly in this matter. I think you need to ask yourself - what's the worst case? You left the country with your son, when you start this action will it cause your X to ask for your son because you left the country? Requiring you to move back or give him up? And requiring you to pay his legal fees? What do you have to gain and at what risk?
Thanks Husker. Well, there's no risk of me losing my son to his father since my son is now 16 and is able to speak in court if need be and if that were to happen, my son would have a lot to say about his fathers drinking and driving with him along with his father giving him alcohol when he was 15 and the fact that his dad barely saw him when we were there. I could go on and on. Also, we have already been in Canada for over 3 years, so no judge can make us go back there after such a long period of time has already passed. I also know for a fact that my ex wouldn't even try to get custody seeing that he doesn't even want our son and neither does his wife. I would think that since we've been here for so long and my ex hasn't made any noise about it, then any judge would see that he would only be making a stink now because he doesn't want to provide for our son. I haven't met a judge yet that liked the man.
I wish you the best of luck and hope you are correct about the judge not wanting or willing to like him.
I don't know what I should do at this point. I can't keep going this way though. The man still has control of my life after all these years and I truly wish when I went to court that I had it set up so the DOR would deposit my support. When my support is as late as it has been, it puts me in a terrible spot.
Thanks for your kind wishes Husker.
Not sure what full custody means. If father has no visititation rights, it would seem you are home free, with no reason not to ask for increased support, especially if the demand is consistant with living expenses. If he has visitation rights, surely you cannot be blamed for Canada's policy on the admission of drunk drivers.
Of course, I'm using logic, not law. Good luck.
What any judge will actually do is a crapshoot. Can I ask a question? Did your ex already have the drunken driving conviction BEFORE you moved to Canada?
If he was convicted after you moved he can't really claim that you moved to seperate him from the child. That was his doing. You can't be held at fault for the ex being a convict and not being able to cross the border.
If he was convicted before you moved he might be able to argue that you moved knowing he couldn't cross the border and in moving you prevented him from seeing the boy.
But generally, here in MA, most judges don't seem to care what was waved before and what was previously agreed to. Your financial status has changed and that directly impacts the well being of the child. I would think most reasonable judges would bump the child support up to the state standard levels.
Also, if your ex's employer is ignoring the court order your lawyer should prepare a letter to them notifiying themof the violation and letting them know that he intends to discuss it with the DA and the judge and have them fined for contempt of a court order. If you incurr and charges (i.e. late fees) because they don't make the deposit as scheduled you can sue them for those costs (in small claims court). Your lawyer should be able to help you make them keep to the court order.
Do you have Canadian citzenship? I'm guessing you don't but if you did there is an agreement between thetwo Federal governments on collecting child support so you could get the Canadian gov. to press your case with the US through diplomatic channels.
Fishin
No, he had not been convicted of the drunk driving before I left. That happened over a year after we were already gone. I have heard several different thoughts on this issue and you have the same thoughts as I have. I just want what what I'm entitled too and I can't see how me leaving the country should have anything to do with the support. My ex's work has also been handing my ex my support checks to deposit because they can't be bothered which means they gave him my account information as well. His work is in contempt of the court order, but I have to go down there to court to push that. While I'm down there I want to set it up so DOR is involved and deposits my support and is there to protect my interests in this matter.
My son and I are dual citizens, so basically when we're on this side of the border we are Canadian citizens, but when we enter the States, we are American citizens.
Thanks for your post Fishin. I feel much better now.
Thank you as well Roger ;-)
It looks like what Fishin' was saying (what a great post) was that if you are a Canadian citizen, you can get the Canadian gov to do some of this for you rather than having to go do it yourself. (As in, "His work is in contempt of the court order, but I have to go down there to court to push that.") But it looks like you plan to go there to take care of a few things anyway.
Good luck!
It would be nice if I could deal with this situation without having to go all the way down there, but I wouldn't even know where to get started. I really can't afford to make the trip unless I know for sure that my support will be increased.
Thanks Soz, I truly appreciate it.
Does anyone know how I can go about getting a court date in Probate from here, or is that possible?
montana,
you did not by any means waive your rights to child support by moving to canada. that's nonsense and don't let anyone tell you otherwise.
fishin's right, you made a deal years ago and you got the short end of it dollar-wise,,, but you are entitled to cost of living increases etc on the support payments at this point.
it's a cake walk with a good lawyer at the ex's expense. if he won't settle the court will make him pay your legal costs or you can spend $30 and sue him for them and tie his butt up in court for years.
I know I didn't waive my rights to child support. I just settled for much less than the judge was willing to give me at the time. I did waive 12 years worth of back support though.
Also, I won't need a lawyer just to increase my support, but thanks a million Mikey ;-)
Montana, You can find the addy and phone number for the probate courts in MA here:
http://www.mass-doc.com/probate_court_dir.htm
You'd have to call and ask them the filing process.
I'll see what I can find concerning the Canadian-US child support agreement. Mebbe you can let the Canadian Gov. do the dirty work for you and simplfy your life a little.
(p.s. If you come down here bring some Molson's Golden ale!
)
Mebbe this will help point you in the right direction there Montana!
http://www.acf.hhs.gov/programs/cse/pol/DCL/dcl-03-08.htm
Thanks a bunch Fishin. Molson it is ;-)
It would be very nice if the Canadian government could do all the work for me, but it doesn't help me if I have to wait too long. I really should have done this a long time ago :-(
Popping in with no real advice, but lots of support.
(support... $245/week to my ex, and I make sure it isn't late too often.)
Montana- I don't know how it would work in Canada, but inquire as to whether your ex can be required to send the money to the court, and then have the court have the money sent to you. That is what I did with my ex husband. It took a couple of weeks to get things moving, but after that, the checks came like clockwork.
The advantage of this, is if your ex is in arrears, you can petition the court directly. Good luck!
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