CS and Visitation Expectations

[askray]

Thanks again Soc.


I have a little more clarification of my question:  I am listed on the birth certificate for my daughter as her father, (I signed it at the hospital before she was released).  It is my understanding that this establishes paternity in Mass, (unless it is contested within 60 days of signing the birth certificate).

So, lets assume paternity has been established via this method and the court sees me as her father, legally.

There is currently NO trial date, but I expect to receive one soon, (within a month), at which point I'll be filing for a parenting schedule.

My ex and I can't agree on the color of grass, let alone anything to do with our daughter.

Questions:

1). With paternity established but no legal parenting plan in place and no court date yet, can I file some kind of motion to allow at least some sort of parenting time for the time it takes to actually get a court date, go to court and have the parenting plan established?  Do I need a court date to be able to file for a temporary parenting schedule/plan or can I do that without having a court date?

2). Because it is such a rocky relationship with my ex and we agree on nothing, is joint legal custody out of the question?

*I was under the impression that the fact that we can't agree on anything was enough for a judge to disallow joint legal custody but that could be bad info.

Thanks again.

[socrateaser]

>Questions:
>
>1). With paternity established but no legal parenting plan in
>place and no court date yet, can I file some kind of motion to
>allow at least some sort of parenting time for the time it
>takes to actually get a court date, go to court and have the
>parenting plan established?  Do I need a court date to be able
>to file for a temporary parenting schedule/plan or can I do
>that without having a court date?

If you have not already been served, you will be served with a petition to establish child support. It may or may not request that custody/parenting time also be established. If it isn't, then in your response to the petition you should request that custody and parenting time be established. At the same time you can file a motion for temporary joint custody and substantial visitation. The court will probably order mediation. Hopefully you and your ex can work things out. If not, then you will need to decide how much money you want to apply to fighting for custody, because you will almost certainly need a custody evaluator or guardian ad litem and that will cost in the neighborhood of $5K, even if not much litigation occurs.
>
>2). Because it is such a rocky relationship with my ex and we
>agree on nothing, is joint legal custody out of the question?

Depends on the judge. As a practical matter joint legal custody is mostly a bone thrown to the noncustodial parent to make him/her feel like he/she's won something. Most noncustodial parents receive joint. What matters is the details of your parenting plan and how much time with the child you actually receive.

I strongly suggest that you consider moving much closer. It will give you an edge in a custody battle that you otherwise won't have.

>*I was under the impression that the fact that we can't agree
>on anything was enough for a judge to disallow joint legal
>custody but that could be bad info.

The court will usually base its decision on trying to maintain the status quo arrangement, if that arrangement is working. So, move closer and establish a new status quo. Don't promise to move -- actions pay dividends that words cannot buy. That will limit the mother's advanage -- no other issue is as important where there is no signs of abuse or neglect.

[askray]

Soc,

Just a few quick questions about status quo:

Currently, the situation is no order for child support or visitation.  After receiving a letter from the DOR telling me NOT to pay child support, I stopped paying the ex.  I'm not happy with our previous informal arrangment of going to my ex's house and watching her be a parent to my daughter, (that is, I'm rarely allowed to hold her, change her, feed her, bathe her, put her to bed, etc).  Because I didn't want to have this 'visiting' arrangment be the status quo and because it is too difficult to watch others be a parent to my child while I sit on the sidelines, I decided to stop 'visiting' a month ago.

If the courts tend to go with the status quo, it would mean no child support for my ex and no parenting time for me.

Question:

1). If the status quo is no child support, no parenting time, will the court stick with this in determining the child support amount and the parenting time?

2). How could I establish a new status quo of parenting my daughter if my ex won't let me?  Are there any legal manuevers to set something up that involves parenting-time instead of 'visiting' with my daughter or do I have to abide by my ex's wishes until we finally go before a judge?

[socrateaser]

>Question:
>
>1). If the status quo is no child support, no parenting time,
>will the court stick with this in determining the child
>support amount and the parenting time?

No. Child support and custody issues are separate. The court determines the parenting rights and duties of the parties, and then orders child support consistent with the parent orders.

>2). How could I establish a new status quo of parenting my
>daughter if my ex won't let me?  Are there any legal manuevers
>to set something up that involves parenting-time instead of
>'visiting' with my daughter or do I have to abide by my ex's
>wishes until we finally go before a judge?

There are no "legal manuvers." You are at the mother's mercy until you get custody orders in place. Save your support money, because you WILL be paying for the arrears that are now building up.

All of my prior advice still stands. If you want to have a serious relationship with your child, then you need to live where the child lives. If you don't wish to do this, then you will pay support and have little visibility in the child's life.

[askray]

Soc, the more I think about it, the more I think it is the right thing to do to move out and be close to my daughter.  There are a few negative consequences of this.  It would mean quitting my job, (which currently brings in a modest income), and there are no jobs around where my daughter lives for what I do.  There are very few jobs at all for that matter, but I could work on a farm or something.  It would also mean decreasing my standard of living dramatically and selling my car.

Questions:

1). When child support is set, will the judge take into account my inability to pay child support due to being unemployed or underemployed and have the child support amount be set very small?

2). How much will it matter to a GAL if this goes to mediation that I'll be living in significantly worse living conditions than my ex?  Could that affect his/her outlook on my parenting ability and would there be any negative consequences for equal parenting time?

3). Could I argue that arrears should only be owed for the time I was employed, not the time I was unemployed due to quitting my job to move closer?

4). Because I will have to sell my car to move/live, can I argue that ALL transportation needs to be provided by my ex?  Can I have worked into the parenting agreement that my ex will pick me up and drop me off for all Dr.'s appointments, school appointments, religious events, etc. that my daughter will be involved in?

5). Where can I find the law about arrears for someone in my situation?  I'm hearing conflicting information about arrears.  Some people think I'll owe them, others think arrears can only be based on a past child support order or if welfare is involved.

[socrateaser]

>Questions:
>
>1). When child support is set, will the judge take into
>account my inability to pay child support due to being
>unemployed or underemployed and have the child support amount
>be set very small?

The judge must use your actual income unless the other party proves that you have greater earning capacity. And, your earning capacity must be generally based on work available in your community.

But, the judge could find that your actions are an attempt to voluntarily underemploy yourself -- it is a possibility, even though it would probably be overturned on appeal. Trouble is that most people can't afford an appeal, so judges will frequently try to force a square peg into a round hole, knowing that the parties are basically stuck.

>
>2). How much will it matter to a GAL if this goes to mediation
>that I'll be living in significantly worse living conditions
>than my ex?  Could that affect his/her outlook on my parenting
>ability and would there be any negative consequences for equal
>parenting time?

The GAL will consider the circumstances that exist at the time that his/her report is made. It will matter, but you need to show that your actions are, on balance, in the child's best interests, because it means your child will have two active parents, rather than only one.

>
>3). Could I argue that arrears should only be owed for the
>time I was employed, not the time I was unemployed due to
>quitting my job to move closer?

If there is a pending motion/petition to modify and/or establish support, then the court will set support and arrears based on the filing date of that motion/petition. I recommend that you find a job first, and then move, because that will show the court that you are not attempting to avoid working.

>
>4). Because I will have to sell my car to move/live, can I
>argue that ALL transportation needs to be provided by my ex?
>Can I have worked into the parenting agreement that my ex will
>pick me up and drop me off for all Dr.'s appointments, school
>appointments, religious events, etc. that my daughter will be
>involved in?

This argument is frivolous. There is ALWAYS are car that can be purchased for $500 somewhere. It won't be a Beamer, but it will be transportation.

>5). Where can I find the law about arrears for someone in my
>situation?  I'm hearing conflicting information about arrears.
> Some people think I'll owe them, others think arrears can
>only be based on a past child support order or if welfare is
>involved.

The statutes are online, usually at the state legislative website. However, the "law" is probably only available from a law library. Usually there is an attorney's family law/domestic relations practice manual written by some legal authority for each jurisdiction.