SD (14) wants to live with us. Need advice.

[zapped]

We are currently in Contra Costa County, California (SF Bay Area).

SD (14) has decided to live with us. BM agrees with SD's decision. There is no "custody battle" in this situation. SD is old enough and we all respect her wishes.

Current court order through San Francisco County has BM as CP and DH as NCP with standard EOW/half summer, half holidays. About 2 years ago, we tried to get 50/50 custody and instead of reviewing the case, the judge requested that we transfer our case to Contra Costa County since we had all moved from SF County to CC County. The case was never transferred due to lack of follow-through by all parties.

1. How do we change custody? Can we make the change without having to go through another court hearing since all parties involved agree with SD's move? If we open up a new case in Contra Costa County, it's going to take a while (which I believe is why it was never properly transferred in the first place).

2. Can we have a lawyer draft paperwork and BM and DH sign agreeing that DH is now CP? I'm assuming we will need a legal document for school, MD appointments, etc. stating that DH is now CP.

3. We are considering having an open visitation between BM and SD (meaning no standard EOW routine). Are we being naive in thinking this is going to be ok for the next four years? Or should we protect ourselves and have a visitation schedule anyway?

Please advise. We are very confused and want to take the right steps. Thanks, Soc!

[socrateaser]

>1. How do we change custody? Can we make the change without
>having to go through another court hearing since all parties
>involved agree with SD's move? If we open up a new case in
>Contra Costa County, it's going to take a while (which I
>believe is why it was never properly transferred in the first
>place).

You can file a motion for entry of stipulated order, and the proposed order, signed by the parties, and the judge will usually just rubber stamp it, unless there's some obvious problem with the text.

>
>2. Can we have a lawyer draft paperwork and BM and DH sign
>agreeing that DH is now CP? I'm assuming we will need a legal
>document for school, MD appointments, etc. stating that DH is
>now CP.

Yes, and yes, all custody decisions must be ordered by a court.

>
>3. We are considering having an open visitation between BM and
>SD (meaning no standard EOW routine). Are we being naive in
>thinking this is going to be ok for the next four years? Or
>should we protect ourselves and have a visitation schedule
>anyway?

You can give the child the right to determine when and where visitation will take place, however you should maintain an explicit parenting plan, just in case...ex:

"Minor child shall be permitted the privilege of personally determining when she wishes to visit the non-custodial parent, subject to the mutual consent of the parties. In the absense of such mutual consent, the express terms of the attached parenting plan shall control visitation."

[zapped]

Hello. Thanks for the previous reply.

DH and BM met at the court house today only to find out that the case has been waiting to be transferred from SF County to Contra Costa County since 2002 but fees were never paid. DH paid the fees today and they told him the case would be at CC by next week.

DH and BM did not end up siging any forms to transfer custody today but will instead meet again to finalize everything (sign the papers) and then DH will personally go to CC County to file the forms. BM cannot take time off work which is why DH will make the trip to the courthouse alone.

My questions:

1. Does BM need to have her signature notarized since she will not be present to file the paperwork at the courthouse with DH? I'm assuming this is so but I just want to verify this with you.

2. Once the transfer of custody takes place, the child support case will be closed. We agreed that we would not seek child support from BM. However, I'm curious - once the case is closed, will that automatically waive arrears as well? Or is there a loophole that says arrears are still due even though the case is closed?

Many thanks.

[socrateaser]

>1. Does BM need to have her signature notarized since she will
>not be present to file the paperwork at the courthouse with
>DH? I'm assuming this is so but I just want to verify this
>with you.

No notary seal is required on a stipulated order, however, if you do it, the judge will be less likely to question the authenticity of the order. Usually, when attorneys are involved, they sign the stip as well, and that gives the judge greater assurance of the validity of the agreement.

In short, I'd get the signatures notarized.

>
>2. Once the transfer of custody takes place, the child support
>case will be closed. We agreed that we would not seek child
>support from BM. However, I'm curious - once the case is
>closed, will that automatically waive arrears as well? Or is
>there a loophole that says arrears are still due even though
>the case is closed?

What do you mean by "the child support case will be closed?"

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Hello. When I said "child support case will be closed", I meant that BM will stop receiving current child support payments for SD. SD will move in with us in about 3 weeks when the school year ends.

DH currently owes arrears. He was laid off several times over the past few years (he is in the IT field/Silicon Valley dot.bomb!) and his support payments were between $700-865 per month at that time. BM refused to temporarily suspend child support while DH looked for a new job. The arrears grew like wildfire (took a while to find a new job).

BM says she closed the child support case this morning (she says she will no longer receive current support). However, BM said she kept the arrears active "for security reasons". BM says she will waive the arrears when SD turns 18. So arrears are still there, will remain on our credit report, and will continue to earn interest each month.

I don't understand what is happening.
 
1. What defines a "closed case"? I was under the impression that once custody was transferred and DH no longer pays BM child support, the case is essentially "closed" - no current support, no more arrears. Do I have this wrong?

2. If DH still has arrears, this means that our IRS taxes will still be intercepted and BM can turn right back around and try to collect the arrears from DH even if SD lives with us?

Feeling stumped. And I definitely feel like we're getting the short end of the stick right now.

Thank you.

[socrateaser]

>I don't understand what is happening.
>
>1. What defines a "closed case"? I was under the impression
>that once custody was transferred and DH no longer pays BM
>child support, the case is essentially "closed" - no current
>support, no more arrears. Do I have this wrong?

In order to give you any decent advice, I would need to read all of the orders/judgments in your case. I just don't have enough facts.

A case is closed when a court orders child support terminated (assuming no appeal or motion fore reconsideration).

Arrears is a separate issue, if there has been a judgment of arrears entered by the court. If so, then that judgment is separately enforceable for 10 years, and renewable infinitely, as long as the renewal occurs during the 10 year limiting period. Interest on such a judgment accrues at 10% per annum simple.

If there is no judgment of arrears, interest accrues at 6% per month to a maximum of 72% for each support payment that is more than 30 days late.

Getting scared yet? You should be.

>
>2. If DH still has arrears, this means that our IRS taxes will
>still be intercepted and BM can turn right back around and try
>to collect the arrears from DH even if SD lives with us?

Yes, and yes.

My advice is that you file for child support, unless the other parent agrees, now to file an acknowledgement of satisfaction of judgment on the arrears with the court, assuming that there is a judgment of arrears entered already.

Even if you don't collect, you will have the right to get a judgment of arrears against the other parent to offset some or all of your arrears.

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