Question about driving

[Crockpot]

I have a court date with my ex to set my parenting time and other issues.  One issue is who drives the kids back and forth.  You indicated I only have a case with this issue if there was no previous order for it and there is not.

I do 100% of the driving (we live 40 miles apart).  I'm asking for her to do 50% of the driving for weekend and holiday exchanges.  I will continue to do 100% for midweek visits.  

I will have an attorney in court and at this point my ex will not.  She received the letter about going to court from my attorney today.  She left me a voicemail saying she will prove in court she can not afford to drive.  I have a letter from her attorney (which she's since fired) saying she won't drive because 'she doesn't want to.'

She works part time at a fast food restaurant and received child support from me.  We have a daughter in school and one who will start and all day, everyday preschool in January.  Which to me indicates she can work more than she does.  She somehow is getting the preschool for free.  

1.  Is not being able to afford to drive a valid defense?  

2.  If yes, how do I defend?  Can I show ways she spends her money 'excessively?'  

Thanks.

[CGS]

Check with your attorney and be careful with this.

I say this because in my experience I have seen a NCP such as yourself argue that the other parent needed to 1/2 transportation, and that not having enough money was not an excuse.... The judge did order the CP to do 1/2 the driving but dratically increased the NCP's child support.  The explanation for a deviation above guideline was to provide for the added transportation expenses so as not to take away from the childs basic needs the original child support provided for.  

[socrateaser]

>1.  Is not being able to afford to drive a valid defense?  

Maybe, but the question is can she work more if the children are in school? I don't know the answer, but if you have a letter that you can use to impeach her testimony that she can't afford it -- rather she is simply refusing to drive to frustrate your exercise of custody, that would be a good tactic.

However, if she actually demonstrates that she is below the poverty level whether she drives or not, your letter will be useless, because the judge will place the burden on you so as to maintain the child's circumstance.

You could counter this by offering to pay for the gas if she drives. I don't know what's more valuable to you, the time or the money or both.

>
>2.  If yes, how do I defend?  Can I show ways she spends her
>money 'excessively?'  

If she raises the issue that she can't afford it, you could try to show that she does not use the support money for the child' support, which will almost certainly require a forensic acounting ($$$$). The obligee parent is entitled to spend the money as he/she wishes, as long as it doesn't actually harm the child. It's a pretty liberal standard.