support over 18 for sudden adhd development

[argus]

Hi. i live in PA. i am an ncp & my ex & son live in FL. As i was about to terminate support due to my son turning 18 recently, my ex petitioned for continuance of cs stating that my son has developed adhd. i was never aware of this prior, & my ex had cut off contact years ago w/my son - she even changed my sons name w/o my knowledge.

despite years of her violating the custody order, i may see him once a year for limited time at most. ex had also tried extending support w/my previous kids while in high school but lost because they either quit or got pregnant.

At the hearing here in PA, my ex phoned in from FL. she was not prepared nor had any documents faxed to the hearing. however, she was granted 2 extra weeks to come up w/data. this data was not revealed to me & the officer ruled in her favor.

info from school & police that i have recently received is restricted. this alternative "school" shows many discrepancies re add/adhd notes & has him in on the job training, w/little focus on academics,  allows him independent study towards a ged; my son works close to full time & earns wages. the school keeps referring to this as 'special' diploma & much talk of 'iep's'. i don't know if he's classified as disabled, impaired, or what and the goals listed are non-educational & they project graduation in 4 yrs.

info reveals some notes from physican about adhd & about being on and off ritalin years to refusal of mom to purchase it consistently.

info reveals that my ex is working while she is collecting SSD. before the decision was made, my atty specifically wrote the officer & told her to investigate her tax info this but it was completely ignored in the decision.

also, for what its worth, my son was conceived during my ex's affair. after we separated & she had boasted that i was paying for someone else's son. for yrs attorneys advised me against disputing it & testing him saying it would get me nowhere but more in debt.  

meantime, my savings for my current toddler's schooling will be depleted. my adult son has been in constant trouble w/the police in his area & has always had a troubled life w/his mom.

lastly, my wages have been garnished for the most recent decision. however, at a recent closing, the proceeds were again tagged by the state for a duplicate garnishment. the local dr office says basically too bad.

I have appealed & am awaiting date for denovo hearing but attorney doesnt seem confident -am desperate for good atty.

again, this is in PA... could would you advise me on any issue here

1- what are my rights to paternity fraud testing at this stage & what do you think of pursuing it ?
2- what can be done about my ex working while collecting SSD?
3- how do i find out the legitimacy of this school or this alternative program which doesn't focus on academics ?
4 how do i cross examine these claims by this doctor re:adhd? my atty says the doctor may not even have to appear nor does my ex.
5- how do i disprove that my son is not disabled by this suddent development of add/adhd if he's earning wages?
6- can you recommend how i can recover the cs money deducted in error from my proceeds at my closing ?
7- what questions can i ask an attorney to discern their ability?

thanks

[socrateaser]

>1- what are my rights to paternity fraud testing at this stage
>& what do you think of pursuing it ?

forgetaboutit. Dead end.

>2- what can be done about my ex working while collecting SSD?

Report her to social security administration, assuming that the amount of work would disqualify her for benefits. It's not the judicial officer's duty to investigate the other parent's income -- it's yours. Not sure why your attorney was writing a letter, but I'm guessing that it was purely to placate you as a client, because the attorney had to know that the letter was not only improper procedure, but also a complete waste of time.


>3- how do i find out the legitimacy of this school or this alternative program which doesn't focus on academics ?

I don't know. Not even certain that it's relevant. What is relevant is whether or not the child is physically capable of supporting himself. For that, a medical and psychological evaluation is warranted, and you should be able to obtain one, if you want to spend the money. Then your experts can testify as to the child's actual disabilities. Alternatively, you could hire a private investigator to follow the child and try to discover if he is really all that disabled. All other paths are blind alleys.

>4 how do i cross examine these claims by this doctor re:adhd?
>my atty says the doctor may not even have to appear nor does
>my ex.

I don't know PA law, but in my opinion, the doctor's testimony is critical and without that testimony, any expert reports are inadmissible hearsay. But, as I said earlier, the better procedure would be for you to get your own expert and have the kid evaluated.


>5- how do i disprove that my son is not disabled by this
>suddent development of add/adhd if he's earning wages?

This is a question of PA law. In order to analyze the issue, I need to read the exact statute and/or case law that permits support to be extended due to disability. In the States that I am familiar with on this issue, it's all about whether the child can self support. The fact that the child may have problems, either physcial or emotional is irrelevant, because everyone has problems of one sort or another. The only question is, "Can the child support himself, i.e., work a 40 hour per week, minimum wage job?" If yes, then you win, if no, then you lose.

You can either attack the issue by proving that the child is medically and psychologically capable of working (i.e., medical/psychological expert diagnosis), or you can prove that the child is actually working 40 hours per week, or that the child isn't working 40 hours, only because he doesn't want to work. This could be inferred from the difficulty level of type of work the child is actually doing.

>6- can you recommend how i can recover the cs money deducted
>in error from my proceeds at my closing ?

As your pending case is for continuing support, your existing order remains in force, thus you owe some amount. Whether your are currently paid in full for the amount of support owed is simply adding up all of the due payments in the past and subtracting those actually made. If your only evidence of this is via the State child support collection agency, then you have the right to subpoena their records in order to reconcile your ordered payments with your actual payments.

>7- what questions can i ask an attorney to discern their
>ability?

a. How many times have you practiced before the judicial officer/judge who will hear this case?

b. Based upon your prior experience with this judicial officer/judge, how can we prevail, and how much will it cost?

c. If you have no experience with this particular judicial officer/judge, then specifically what past experience with this issue do you have?

d. What is the case law precedence regarding this issue, and is my case on points with any of the case law?

e. In short, can I win, how much will it cost, and if not, then precisely why not?

[argus]

>This is a question of PA law. In order to analyze the issue, I
>need to read the exact statute and/or case law that permits
>support to be extended due to disability. In the States that I
>am familiar with on this issue, it's all about whether the
>child can self support. The fact that the child may have
>problems, either physcial or emotional is irrelevant, because
>everyone has problems of one sort or another. The only
>question is, "Can the child support himself, i.e., work a 40
>hour per week, minimum wage job?" If yes, then you win, if no,
>then you lose.

as far as i can tell, this is the statute below & i have caps on point of interest: (http://www.pacode.com/secure/data/231/chapter1910/s1910.19.html)

(e)  Within one year of the date a child who is the subject of a child
support order reaches eighteen (18) years of age, the domestic relations
section shall issue an emaicipation inquiry and notice to the obligee, with
a copy to the obligor, seeking the following information:
   (1)  confirmation of the childs date of birth, date of graduation or
withdrawal from high school;
   (2)  whether the child has left the obligee's household and, if so, the
date of departure;
  (3)  the existance of any agreement between the parties requiring
payments for the benefit of the child after the child has reached age
eighteen (18) or graduated from high school; and
   (4)  ANY SPECIAL NEEDS OF THE CHILD which may be a basis for continuing support for that child beyond the child's eighteenth birthday or graduation from highschool, whichever is last to occur  The notice shall advise the obligee that if the inquiry is not returned within thirty (30) days of mailing or if there is no agreement or the child does not have any special needs, the charging order may be modified or terminated by the court. When no other children are subjects of the child support order and the obligee either does not return the emancipation inquiry within thirty (30) days of its mailing or does not assert grounds for continuing support for the child, then the court shall have the authority to administratively terminate the child support charging order without further proceedings at any time on or after the last to occur of the date the last child reaches age eighteen (18) or graduates from high school. Termination of the charging order shall not affect any arrears accrued through the date of termination.
The court shall have the authority to enter an order requiring the obligor
to pay on arrears in an amount equal to the a,ount of the charging order
until all arrears are paid.
If the order applies to another child or children and/or the obligee
asserts that there is an agreement between the parties or that a child  has special needs requiring continued support, then the domestic relations section may schedule a conference to determine of the charging order should be modified.


>>2- what can be done about my ex working while collecting
>SSD?
>
>Report her to social security administration, assuming that
>the amount of work would disqualify her for benefits. It's not
>the judicial officer's duty to investigate the other parent's
>income -- it's yours. Not sure why your attorney was writing a
>letter, but I'm guessing that it was purely to placate you as
>a client, because the attorney had to know that the letter was
>not only improper procedure, but also a complete waste of
>time.

i was told that at this denovo hearing, everything could be brought to the table including unreported income that would potentially decrease my support.  i thought that's how they determine a fixed amount. obviously, i'm ordered to show my tax info.

1)  if the judge doesnt have the duty to demand her w-2's or tax  
     returns, by what authority can i demand it ?


>>3- how do i find out the legitimacy of this school or this
>alternative program which doesn't focus on academics ?
>
>I don't know. Not even certain that it's relevant. What is
>relevant is whether or not the child is physically capable of
>supporting himself...

it appears that the pa law states that graduation or 18 is the guideline. if this infers the ability to support himself, the school records clearly state that he works nearly if not mostly full time each week earning wages. & if he presents a problem, it is all behavioral (temper, immaturity, etc) , not what i would call a disability.

2)      -in light of the school documentation of his earning wages, do you
         think that proves the case of a non disability?

3)       -how would you go about finding an attorney if none appear
          confident locally & had limited funds ?

thanks much

[socrateaser]

>as far as i can tell, this is the statute below & i have caps
>on point of interest:
>(http://www.pacode.com/secure/data/231/chapter1910/s1910.19.html)

Thanks for looking up the statute. The question is now: what are "special needs" sufficient to permit the court to continue a parent's child support obligation for a child of 18 years or older. After a quick look at PA case law, I find only one case on points with section 1910.19(e)(4), i.e., Crawford v. Crawford, 429 Pa. Super. 540, (1993):

"It is true that a parent's child support obligation generally ceases when the child reaches 18 or graduates from high school, whichever comes later. Dewalt v. DeWalt, 365 Pa. Super. 280, 529 A.2d 508 (1987); Hanson v. Hanson, No. 2133 Philadelphia 1992 (Pa. Super 1993). Observing a long-recognized exception to this rule, however, a panel of this Court recently acknowledged that parental support is required where a child has a physical or mental condition which exists at the time the child reaches majority and prevents the child from being self-supporting or emancipated. Hanson, supra; see also 23 Pa.C.S.A. § 432(3).

 
Undoubtedly, the presumption is when a child reaches majority, the duty of the parent to support that child ends. Once the presumption arises, it is then incumbent upon the child to rebut the presumption. The duty to support the adult child continues where the child is physically or mentally feeble or otherwise unemployable. The adult child, however, has the burden of proving the conditions that make it impossible for her or him to be employed.

 
Verna v. Verna, 288 Pa. Super. 511, , 432 A.2d 630, 632 (1981) (citations omitted); see also Com. ex rel. Cann v. Cann, 274 Pa. Super. 274, 418 A.2d 403 (1980)."

The problem with the above text is that the ruling was made before the statute that you have posted existed in its present form. However, assuming that the state legislature used Crawford as the template for the statute at issue, it's fair to say, that I was on the money in my prior post concerning this area of PA, law, i.e., the child (or a person acting on behalf of the child) must show that the child cannot self-support due to some physical or mental disability. If this is shown, then support may be continued.

Therefore, everything I suggested in the prior post is relevant. Prove that the child is capable of self-support and the court must terminate your support obligation. Otherwise, you're sunk.


>1)  if the judge doesnt have the duty to demand her w-2's or
>tax returns, by what authority can i demand it ?

The judge has authority to demand the other parent's W-2s, but that is not how the legal system usually works. It's the litigant's duty to use the discovery process to obtain evidence and present it to the court in order to prove their respective cases. It is not generally the court's duty to do anything other than to consider the evidence and render a decision.

Which is why I said that the letter written by your attorney was silly. I may be missing some important facts, but based upon what you've posted, I can think of no reason to write such a letter to the court.

>>>3- how do i find out the legitimacy of this school or this
>>alternative program which doesn't focus on academics ?

You could do a foreign deposition of the school officials, however, I don't think that the school is relevant. The question is only whether or not the child is capable of working a 40-hour week. That is what I would concentrate on proving.

>2)      -in light of the school documentation of his earning
>wages, do you think that proves the case of a non disability?

That would be pretty good objective evidence, especially since it comes from your opponent.

>
>3)       -how would you go about finding an attorney if none
>appear confident locally & had limited funds ?

I have no suggestions of how to save money on legal representation. Lawyers are expensive. You will have to decide whether this fight is worth the up front costs.

[argus]

thanks for valuable input & case law - its more than the two attorneys i consulted with have done.

>1) if the judge doesnt have the duty to demand her w-2's or
>tax returns, by what authority can i demand it ?

   The judge has authority to demand the other parent's W-2s, but that  
   is not how the legal system usually works. It's the litigant's duty to      
   use the discovery process to obtain evidence and present it to the
   court in order to prove their respective cases. It is not generally the
   court's duty to do anything other than to consider the evidence and
   render a decision.

The attorney said there is no discovery process w/child support ... I will double check with her.


thanks again

[argus]

i forgot to ask:

at a recent closing which i said a duplicate garnishment was attached by the state tagging my proceeds. the title for real estate is not just in my name.

is my ex entitled to claim proceeds from the sale of property for child support?

[socrateaser]

>i forgot to ask:
>
>at a recent closing which i said a duplicate garnishment was
>attached by the state tagging my proceeds. the title for real
>estate is not just in my name.
>
>is my ex entitled to claim proceeds from the sale of property
>for child support?

Not enough facts:
1. Did you owe the arrears?
2. Was the other person entitled to money from the property sale injured, i.e., if you were both entitled to 1/2 of the proceeds, was there not enough to pay the other person their 1/2 interest?
3. Was the other party a cohabiting partner or your current spouse(or the parent entitled to to the support that was garnished)?

[argus]

Not enough facts:
1. Did you owe the arrears?
2. Was the other person entitled to money from the property sale injured, i.e., if you were both entitled to 1/2 of the proceeds, was there not enough to pay the other person their 1/2 interest?
3. Was the other party a cohabiting partner or your current spouse(or the parent entitled to to the support that was garnished)?


1-no i do not owe arrears - in fact w/the duplicate garnishment taken from my closing proceeds, i am well ahead of my cs payments (arrears were never an issue - the state dept. made a mistake-apparently unrecoverable for me)
2-the other person owning title is my current wife & we will be investing proceeds in purchasing a house

is my ex entitled to claim proceeds from the sale of property
for child support?

thanks

[socrateaser]

>1-no i do not owe arrears - in fact w/the duplicate
>garnishment taken from my closing proceeds, i am well ahead of
>my cs payments (arrears were never an issue - the state dept.
>made a mistake-apparently unrecoverable for me)
>2-the other person owning title is my current wife & we will
>be investing proceeds in purchasing a house
>
>is my ex entitled to claim proceeds from the sale of property
>for child support?

If you were paid up, then the garnishment is unlawful. Support is due and payable as each date for support payment to be made passes. I don't know how much money is involved, but, it certainly appears that you're in the right.

File a motion for clarification/enforcement of your support obligation, allege the overpayment, and demand credit/reimbursement from the other parent.

[argus]

ok, in  light that i don't owe anything, i take it that my ex IS NOT entitled to claim proceeds from the sale of property for child support?

[socrateaser]

>ok, in  light that i don't owe anything, i take it that my ex
>IS NOT entitled to claim proceeds from the sale of property
>for child support?
>

Not unless your order is for a percentage of income. If your order is for a fixed amount, then that is all that you owe and not a penny more (or less).

[argus]

thank you !

in light of our great italian food here with special discounts for attorneys, & wonderful peninsula....

1) how likely would you be interested in visiting PA ?
2) how likely would you be interested in representing a very well deserved client ????

;)

[socrateaser]

I'm flattered, but remaining anonymous is what permits me to help so many different people in an unbiased manner.

[rini]

hi

you may file an appeal without your attorney but you must file before the time limit is up ... very important!!!

this can include a brief synopsis of your basis for the appeal and can be prepared rather easily

i do have some copies of some recent appeal for suppport court in pa that may be helpful

rini in pa

[email protected]

by the way the discovery process is most certainly available in support cases i posted the relevent code info on the support forum