Custody/Support issues-is not offering right of first refusal enough to file for

[redbabyblue70]

My fiance has joint legal custody of his three children but his former wife has physical custody of the children.  The current custody order indicates he shall have them every other weekend and once a week.  For the past year, his former wife has agreed to joint custody.  In a two week period he has them for seven days and she has them for seven days.  When this change took place, he filed for a modification in child support, and before the hearing took place, she willingly signed off on stopping child support.  At this time, she moved across town with her boyfriend, whom also has three children from a previous relationship. (Sidenote, we reside in Pennsylvania).

Her live in boyfriend is no longer working.  She has now refiled for child support, even though the visitation arrangement has not changed.  During this year, I lost my job and my fiance's hours were cut back to the point where he was working two part time jobs.  In essence, he is making LESS money then she is.

Here are my questions/concerns-

1) Since her boyfriend is not working, she has stopped following the right of first refusal stated in the custody order.  She works as a cashier in a conveniene store, and has never requested to change her work schedule so she would NOT be working on the established weekends she has her children.  Does my fiance have the right to file for violation of the custody order?  When she moved in with her boyfriend, she never informed the court of her change of address.  It is stated in the court order that both parents are to inform both the court and the other parent in writing when they move. 

2)  We feel the only reason she is now once again seeking child support is because her boyfriend is no longer working.  My fiance has finally gone back to working full time with his primary employer (within the last two weeks).  It appears once she found this out, she decided to seek support again.  When she was receiving child support, she was still not purchasing everything the children required with it.  We were already financially strapped (and obviously still are since our employment situation has gotten worse not better) and having to pay for things for the children that she was not obtaining for them.  Is child support really awarded when there is a 50/50 split.

In general, she states she wants to be work with him. She went behind his back and filed for support without discussing it with him.  She has also contacted Children and Youth services and filed false accusations against him for the past year.  We have dealt with a lice situation coming from HER home for over a year, spent hundreds of dollars trying to rectify the problem.  When we finally called Children and Youth ourselves, we were basicly told at the time the social worker visited, they did not have lice and it is not a life threatening situation.  She admitted to me when they first separated that she was angry at him for leaving and filed a false PFA against him. 

We are both so frustated at this point.  All he wants is what is best for his children.  To make this situation worse, it is a known fact that one child is biologically not his child (from one of her numerous boyfriends when they were married) and he has always questioned whether another child is biologically his.  He is afraid to request paternity tests for fear if the one child is not his, he will lose visitation with her.  I am pushing for him to persue paternity.  I understand why he does not want to, after all, in our eyes, he is their father.  I understand that, but at the same time, the financial burden is making life difficult.

Is there anything we can file legally against her?  It makes me nervous that they only have a VERBAL agreement of the 50/50 arrangement.

[CuriousMom]

I'm in PA, too.  It is my understanding that custody and child support are 2 separate entities in our state.  As fas as I know, she can refile at anytime to start her support payments again.  Since you said all of this was never agreed to in writing I don't see how you can stop her going back to DR.  At this point it would go off the original order so I would try to get the original order modified ASAP to show he has had 50/50 over the past year.

As far as her violating the original order's ROFR, you can hold her in comtempt as well as the address change.  At that time, since your fiance has had the children half the time, tell the judge this has been the arrangement for the past 12 months and modify the original order.  I think you'll have to file the contempt and modification seperately but it should be reviewed at one time when your conference is scheduled.  Having 12 months of this schedule already established should work in your favor to have the order modified accordingly.   

I also think her CPS issues over lice will not work in her benefit.  Like they said, lice is not life threatening and the children and their surrounding are fine.

I know as hard as it is to want to reduce the support payments, if it's determined there is one, but in my personal opinion it would be in the best interest of that child who's paternity is unknown to not make the child go thru that.  If she thinks your fiance is the father I would leave it be especially since he is so involved in the child's life.   

[MomofTwo]

Child support, even with ordered equal time sharing, can be ordered if there is an income disparity between the two parents. Equal time sharing does not always mean no child support is ordered.  Additionally, his current custody arrangement is not court ordered. According to the courts, she has physical custody. If she decides today to go back to the order, she can and he can't do anything about it. If he wants that to be the custody arrangements, he needs to file with the courts and state this has been the arrangement for the past year and he wants it reflected in the court orders.

You have been doing this custody arrangement for a year - the same year she moved and NOW you want to file contempt for her not providing an address?? Seems you are looking for petty things to file against her.   She may not have notified the court of her address but clearly you have it.  What is the point of filing contempt for that?   Should she have notified the court..yes, did she notify you (her ex)...yes. So what do you hope to gain by that?  That is the kind of petty stuff judges get annoyed by. It would be one thing if she refused to provide you the address or let you know where the children were, but you do know.

Regarding paternity.... if they were married when the child was born and he never contested paternity,  he IS the father.  Many states have laws stating a child born of a marriage is their child.  His time to contest paternity may have been long gone, even if he is not bioloigically the father.  He needs to consult an attorney.

Lice is highly contagious. If someone had it at school (which schools still do lice checks) the children could have gotten it there.  YOu even said they did not have lice.  CPS is not for lice, it is for endangered children. 

Bottom line....you are not involved in this. I know you are his current gf, but his children and his responsibility to them does not end for a very long time.  If these things bother you, maybe you shouldn't be involved with a man with children and an ex.   She (his ex) could stick to the letter of the agreement, have him paying child support and be a "parent" who is trying to make his life miserable and do everything she could to have him uninvolved in the children's lives, but she hasn't...so why are you looking for petty things to file against her? 

[redbabyblue70]

In response to Momoftwo-  Please let me state again, I am engaged to him, so I am VERY much involved.  The money I earn  (from a job from the school district and unemployment) along with his income supports ALL five of us.  I knew he had children when we got together and we slowly introduced them to me.  They have accepted me and I have accepted them. Actually, it is more then accepted.  I love them like they are my own.  I attend all their school and church functions.  I am there for them if they need me.  I have taken care of them at times when their mom is working and she has called asking me to watch them for her.  Maybe the address change seems petty to you, but to me, it goes on to a list of things that she has not been handling correctly.  If he was the one to move and did the same thing, trust me, she would file an order of contempt against him.  She filed a false PFA against him.  Even involved Turning Point.  He has never hit her.  She accused him of being an alcoholic.  Several mutual friends tried to get her to drop the PFA.  I wanted him to fight it, but after watching the judge serve a PFA against a man that had a videotape showing his ex girlfriend was hitting HIM, not her, he decided to mutually agree to stay away from her (NOT his children).  This way, it was not on his permanent record.  Maybe you did not have knowledge of it, but she fought him in the beginning to spend time with his children.  She also fought the divorce which makes no sense.  She files a PFA against him but wanted to stay married to him?? 

What I said was when Children and Youth went to her home , there was no lice showing.  Maybe I should of added it was after we returned the children from his weekend and spending a lot of it treating the lice, since they were sent to us with it.  For weeks, we would treat them, spray everything, wash everything, get it taken care of, with instructions to her to do the same to her home, and retreat it.  Guess what, when they came back to us, the lice would be back again.  It was to the point where his 13 year old and 10 year old daughters where in tears about it.  And so was I.  When he again tried to discuss it with her, she swore at him, hung up on him and when he called back she put her boyfriend on the phone.  That is when we finally called Children and Youth. 

Through all of this, he is not looking to seek out sole custody, as much as he would like to.  He just wants the same rights that the state of PA seems to offer every mother.  He wants to share 50% of his childrens' time.  He wants to have funds so he can buy them life's necessities, food, clothes, a place to live, and yes some fun things, games, toys- or be able to afford to take them somewhere- whether it be an amusement park, or a baseball game. It is difficult to do that when you are giving a good chunk of your income to your former mate for child support, and still have to provide all the same things she is when they are with you 50% of the time.

Bottom line, is I came to this site, finding it it interesting to hear other people in similar situations, looking to compare notes, and maybe some "friendly" advice.  I may not be their biological mother, but I am another female that will be in their life.  I am not trying to take her place.  When they are in my home though, I am the female adult figure in their life.  I have been there.  My parents divorced when I was 10, I am the youngest of three children.  My father left my mother for a woman that was 20 years younger then him (only 11 years older then me).  So I know how it feels to have a stepmother, or another woman in my father's life.  My parents divorce was quite nasty.  My fiance does not treat his former wife the way my father treated my mother.    He loves all of his children, as I said previously, even if they are not biologically his.  I feel, for medical purposes as well as financial, he should know if his now 11 year old daughter is truly his child or not.  His fear, is he would lose the right to be/see her if it is discovered he is not the father. For this reason, he will not persue it.  Honestly, do you really feel she had the right to deceive him all these years???

To CuriousMom, thank you for your insight and advice. It is nice to hear from someone that resides in the same state.   Their income is quite close, and as of right now, she earns more per hour then he does.   He is not a father that tried to change his job to earn less money.  His hours were cut when his current employer learned he was trying to change jobs.  To better himself, earn more money, so he may provide additional things for his entire family.  We plan on going to the law library at the court house this week to do some research on the equation for calculating support and to file a motion to modify the custody order to what is currently in place.  We have not decided whether to bring a contempt order for the ROFR.  Neither one of us wants to go to war with his former wife, we just want her to stop the attacks and do what is best for their children.  I am sorry that her current boyfriend is not working, but it is her choice to be with him.  Why should her former husband have to pay to support him? She agreed a year ago to stop child support payments due to the 50/50 share of the children.   In general, I feel when child support is paid, the person receiving the support should have to continueously show the funds are being used for the children.  When a child receives SSI, the guardian receiving support has to show the government that this money was used to support the child.

[kidscomefirstdad]

Thanks curious mom,  part of why I have waited so long to modify the order in writing is because there is a third party involved.  I wanted to be able to show the court that there has been some time of complete 50/50 physical custody in hopes to avoid any question from the third party.  Momoftwo there have been many unfounded calls to CYS against me for things that the normal parent wouldn't have to deal with.  In regards to the address change, well, lets see, I had to have my daughter show me where they live.  In the last year I have devoted as much time as possible to being with my children.  Prior to the move my ex would call to see if I could take the children when she was at work, and naturally I would.  Since she has moved there has been no such offer, EVER.  The other week I had to work during the day, on a day that was mine, and she said she was working also, at that point under the right of first refusal, it is my decision as to who cares for my children, however, my ex tried to dictate to me that I was to bring the children over to her boyfriend, I told her, no and that I will get them over when I got off from work. 

As to the modification, my plan is to get it in this week. Once the modification has been sent out to all parties, including my lawyer, I will file a contempt charge against her.  For several things, 1) failure to provide the address, 2- failure of right to first refusual 3- not allowing access to the children 4) constant drilling the children as to what happens while they are in my care 5- communicating information verbally through the children 6) poisoning the children's mind against me. I agree with curiousmom that the modification needs to be done first.

Now as to the support.  I made and still make considerably less than she does.  It is my understanding, that even if she is the one that files for it, since I make less than her I could end up being rewarded the support.  Now look at this on her sworn request for support she states that she is not recieving aide from the state.  The house is in her name, all utilities, internet, car insurance for 2 vehicles, gas, cigs for 2 adults, and who knows how much they both smoke.  She is the only one working her bf is not and not collecting unemployment.  She makes somewhere between  $10.50-$12.00/hr at 35-40 hrs per week.  You tell me she is not recieiving any aide from the state. 

My goal and wish is that what is best for the children comes first.  My hope is that all three of my children will one day say they want to live with me full time, and when that is stated I will fight for that.  I agree with curious mom both children the one that I know is not mine and the one that is questionable, at this point, would not be in their best interest for them to find out I'm not realy "dad."  I love all three of my kids, and obviously, my fiance feels the same way, or she would not have posted her question. 

[CuriousMom]

kidscomefirst -

Yes, you could be awarded support but it is all going to be based on income to income and the custody split stated in your order.  She will have to disclose if she is receiving aid from the state, they will ask her during your DR conference.  That's why you should try to see if you can have your order modified asap so you can show DR that you do have the children half the time.  I've been thru this 3x in the past 3 months, my ex just won't let it rest that he has to pay support.  I'm not sure how he keeps getting hearings scheduled either, I had thought there was a limit you could appeal during a year period, but I'm not completely sure about that.

If some of your children are old enough (you mentioned one is 11), their decisions may also come into play.  Our judge told us (this changes per judge) that a child's preference can come into play around age 12.

I also have to agree with Momoftwo (because I've done all this in the past 3-4 months in PA), if you are waiting until now to file a contempt order on the address change the judge will probably wonder why you waited so long.  But the other topics you mentioned should have some merit.  They are explicitly defined in my order.

Our judge actually made us "throw stones" at each other during our pre-trial conference I think so he could hear some of the underlying issues/concerns.  But regardless of the situation between my son's father and I, he repeated over and over it is solely what is in the best interest of the child. 

Good luck!