I have some questons about visitation and child support.

[whippertizzy]

Dear Socrateaser,( I am trying to follow the forum guidelines, if I mess up, I am really sorry)

Another poster suggested that I post my questions on your board, so I thought I might give it a try.

My Husband and his Ex wife have 2 daughters together. We all reside in illinois, his ex-wife and daughters are in Lake county Illinois.  They have been divorced for several years and their is court ordered visitation in place.

The visitation order was that My Husband (ncp) would have visitation every other week friday night to saturday afternoon because the children were so young.  He was allowed to go back to court after a year to ask for more if  he wanted. He did not go back and ask for more because of his work schedule, and the mother(cp) allowed him to take them places after work.  

This all changed when he married me, and thats when the visitation problems started.  Right now he is on medical leave for a very serious illness. Another poster has already told us that he is contempt for not paying the child support that is court ordered.  So I guess here are my questions.

1. He has not paid child support for about a month.  We do not have the money to pay for a lawyer, I know that we need to go to court and file the paperwork to ask for a reduction.(going next week)  Is illness something they will consider grounds for a reduction? (he will start getting disibility checks too, and will pay whatever the stipulated ammount is)

2.His ex is denying visitation because she has not got any money. My husband wants a new visitation order. Will it look badly on him that he has not paid child support during this period of time? He has never missed a payment until now.

3. The order they have now is vague, is it out of the ordinary for a visitation order to specify which weekend, like the 1st and 3rd?  My husband would like to ask for it so she can't wiggle out of which weekend they can come.

4. Is it feasible to ask for the trasfer point to be at the police station?  She has a violent husband that tries to pick a fight when we come to pick them up. It's always a mess, makes the children cry. We were thinking that  maybe if the transfer point was at the police station, maybe we could lose some of the drama, what do you think?

I hope I have stuck to the guidelines of this forum, and would appeciate your opinion.

[socrateaser]

>1. He has not paid child support for about a month.  We do not
>have the money to pay for a lawyer, I know that we need to go
>to court and file the paperwork to ask for a reduction.(going
>next week)  Is illness something they will consider grounds
>for a reduction? (he will start getting disibility checks too,
>and will pay whatever the stipulated ammount is)

You are not in contempt for not paying, if your inability to pay is the result of circumstances beyond your control, i.e., serious illness. However, if you have savings or other non-essential assets that you could liquidate to get the money, then you would be in contempt.

Yes, the illness is a hardship that the court will consider for a reduction. You need to file for a downward modification IMMEDIATELY, because you are building up arrears that cannot be waived, regardless of how unfair or unjust this may seem.

>
>2.His ex is denying visitation because she has not got any
>money. My husband wants a new visitation order. Will it look
>badly on him that he has not paid child support during this
>period of time? He has never missed a payment until now.

Denying visitation because of failure to receive support IS CONTEMPT, so you need to follow the current custody orders to the letter, and have the police show up and either help you exercise custody, or file a report that the other parent is refusing to allow you visitation.

>
>3. The order they have now is vague, is it out of the ordinary
>for a visitation order to specify which weekend, like the 1st
>and 3rd?  My husband would like to ask for it so she can't
>wiggle out of which weekend they can come.

No, you should be able to file a motion to clarify the existing order and get a firm set of visitation dates.


>
>4. Is it feasible to ask for the trasfer point to be at the
>police station?  She has a violent husband that tries to pick
>a fight when we come to pick them up. It's always a mess,
>makes the children cry. We were thinking that  maybe if the
>transfer point was at the police station, maybe we could lose
>some of the drama, what do you think?

It's feasable, but unless you have proof of the violent behavior, you're probably not gonna get that order. Get a small microcassette recorder and keep it in plain sight and record the conversations that occur when you try to visit the kids.

Court is NOT ABOUT THE TRUTH. It's about what you can PROVE, via credible evidence that the court will accept. Just because you know something to be true, doesn't mean you can prove it, so make sure that you're collecting OBJECTIVE evidence, or most of what you want will be denied you.

[whippertizzy]

Thank you for answering my questions, I have a few more if you have the time

Maybe I should have been more specific when I was talking about the visitation. He wants to get it changed for more visitation that he is already getting.  

1. To get more visitation than he is getting is a modification right?

2.  What do they consider when asking for more visitation?

 From what I can see you can ask for the moon in court, doesn't neccesarily mean you will get it. He gets every other weekend friday night to saturday morning. (Since we live 3 hours away this is a killer for the kids)He would like one weekend a month, Friday to Sunday, and 6 weeks in the summer.

3. Is that a reasonable ammount to expect, or is he setting his heights to high?

4. How does illness factor in on visitation? He is still up and around, but he worries that his ex might say that since he is sick that he can't take them.

5. If the police in the area don't bother with coming to calls where the visitation is being denied, how do you prove it was denied?  Can we tape record, or videotape?  

6. Will it look bad in court that he has not tried to exercise his visitation for the past month and a half? (he was hospitalized part of this time)

Thank you very much for your time.

[socrateaser]

>1. To get more visitation than he is getting is a modification
>right?

I don't understand your question. Please rephrase.

>
>2.  What do they consider when asking for more visitation?

You must prove that there has been a substantial change in circumstances affecting the child's best interests. The illness is not such a change. An improvement in the stability of your home or financial circumstances is also not such a change.

You need proof that the child(ren)'s life has changed in some substantial way, completely absent any change in your life. Otherwise, you are wasting your time and money.

>3. Is that a reasonable ammount to expect, or is he setting
>his heights to high?

If custody has already been awarded, then you must prove a "substantial change in circumstances," or you will not get anymore than what you already have.

>
>4. How does illness factor in on visitation? He is still up
>and around, but he worries that his ex might say that since he
>is sick that he can't take them.

If I were your opponent, I would argue, that if you're well enough to want more time with the kids, then you must be well enough to work to pay to support them. Thus, your argument, if you try to make both cases (for support and custody) at once, will both fail.  

>
>5. If the police in the area don't bother with coming to calls
>where the visitation is being denied, how do you prove it was
>denied?  Can we tape record, or videotape?  

Yes, as long as the subject of the recording is in public view, and he/she has no reasonable expectation of privacy, and the recording device is also in public view.

>
>6. Will it look bad in court that he has not tried to exercise
>his visitation for the past month and a half? (he was
>hospitalized part of this time)

No, if the failure to exercise visitation is due to circumstances beyond your control, then it is not willful, and therefore not in contempt.


>
>Thank you very much for your time.
>

[whippertizzy]

So If I am understanding this correctly,

1. The only way he can get more time is if something has changed in the childrens lives?
if so
2. Like what? I am afraid I don't understand that. Do you mean if something negative was going on at the Cp's house then that would be a change to consider for more visitation?

 I am trying to do the math, I am not sure if what he wants to change his visitation to is more time really. One of the reasons he wanted to change it to one weekend a month fri through sun, instead of everyother weekend fri night to sat morning is because of the driving, the kids get sick of only getting to come for what seems like a couple hours before they go to bed just to  get up to go home. (3 hour drive)

3. Is this something the court will consider as a factor for asking for a different visitation schedule? The fact that we live three hours away and they are only getting to spend about 3 waking hours with their father at the house before they have to get into a car and drive 3 hours back.( Friday night at 5 pm- 3 hours to where we live, and then they have to be back by noon saturday)

We have asked the Cp if we could keep them a couple extra hours, but she says no and that if they are a moment late she is calling the police.

[Kitty C.]

Don't let her intimidate you.  What if you had a vehicle breakdown on the way back?  She can call the cops all she wants to, they won't do a damn thing.  These kind of CP's like to use intimidation to get what they want.

If the kids are complaining about not being able to spend enough time, I don't know if that's a good enough 'significant change', but it might be a place to start.

[socrateaser]

>So If I am understanding this correctly,
>
>1. The only way he can get more time is if something has
>changed in the childrens lives?

Correct.

>2. Like what? I am afraid I don't understand that. Do you mean
>if something negative was going on at the Cp's house then that
>would be a change to consider for more visitation?

Correct.

>
> I am trying to do the math, I am not sure if what he wants to
>change his visitation to is more time really. One of the
>reasons he wanted to change it to one weekend a month fri
>through sun, instead of everyother weekend fri night to sat
>morning is because of the driving, the kids get sick of only
>getting to come for what seems like a couple hours before they
>go to bed just to  get up to go home. (3 hour drive)

I don't know how young these children are, but if they are mature enough to voice their opinions, then you could video them and offer the video as evidence of their preference for a different schedule that would reduce the stress of driving such a long distance. Also, you can simply testify that they appear to you to be very uncomfortable with the current parenting plan, and that this represents a change in circumstances, and that the best interests of the children would be better served by a different plan, without any change in the percentage of time with each parent. Ideally, you want to have a therapist evaluate the children and then testify as an expert that the present parenting plan is unduly stressing the children, and that an alternative plan that would not alter the actual amount of custody should be preferred.

It appears from your facts that you are actually lowering the amount of your parenting time, but if driving is a huge part of this time, then perhaps not. If you "are" diminishing your parenting time, be careful, because you could end up with a bigger child support order at the end of this.

>
>3. Is this something the court will consider as a factor for
>asking for a different visitation schedule? The fact that we
>live three hours away and they are only getting to spend about
>3 waking hours with their father at the house before they have
>to get into a car and drive 3 hours back.( Friday night at 5
>pm- 3 hours to where we live, and then they have to be back by
>noon saturday)

Yes.

>We have asked the Cp if we could keep them a couple extra
>hours, but she says no and that if they are a moment late she
>is calling the police.

If you can get her to admit that in writing, or on tape, i.e., that she is unconcerned that the drive time may be distressing to the kids, and that she would prefer to force you to drive extra time in order to adhere to the existing order, rather than change the order in the "children's best interests," THEN you will have some useful evidence. The court would have to find that the custodial parent is affirmatively acting against the children's best interests, and that is grounds for a new custody hearing.

[whippertizzy]

Well we got some somewhat better news today. His ex has stopped taking his phone calls.  So He left a message saying that he would be there on the next sceduled visitation day. He is also sending a letter notifying her that he is exercising his visitation.

We FINALLY got ahold of the right section of the police station. They will be there everytime we go to pick up the children.(they asked that we call them to remind them and gave us the direct number to their dept) They will document every single time she or her husband makes threats, say the kids aren't there, or anything aside of have the kids ready to go.

I am hoping that this all isn't too good to be true.

1. since he is going to start using the notice to exercise visitation letter, What happens if she has an excuse every week that he can't pick them up?

2. Should we use the notice to exercise visitation letter? Or should we let her hang herself by her own bad behavior and just show up at the scheduled time with the police. (This sounds like the wrong way to do things to me, but heck, I'm no lawyer, what do I know?)

[socrateaser]

>1. since he is going to start using the notice to exercise
>visitation letter, What happens if she has an excuse every
>week that he can't pick them up?

I have not reviewed, nor am I the author of, the notice letter to which you refer. So, I have no specific comments about its usefulness. However, I would definitely send the other parent certified mail stating the time and place that you intend to exercise your custody rights under the existing order, so as to have evidence that you were zealously protecting your rights.

>
>2. Should we use the notice to exercise visitation letter? Or
>should we let her hang herself by her own bad behavior and
>just show up at the scheduled time with the police. (This
>sounds like the wrong way to do things to me, but heck, I'm no
>lawyer, what do I know?)

See #1, above.