petition and answer

[marcuswelby]

The original custody agreement was written in Maryland.  I was named custodial parent and standard joint legal custody agreement.  This has been in accordance for the last seven years.  NCP has visitation one weeknight and EOW.  NCP has failed to pay child support in all those years, but I made no attempt to file a suit or collect it.  

Three months ago, NCP convinced the oldest child to live in that residence which included a change of schools.  Immediately after, NCP disallowed all visitation for two months time and has been sporadic in allowing it these past few weeks. NCP claims 13 year old does not want to visit.

My lawyer drew up a petition for sole physical custody of all children to my care.  This is a change from the original agreement.  My reasons are that I can no longer see my oldest, oldest child's grades feel to failing level while in NCP's care, and that the weeknight visitation creates a hardship on the children during the school year due to travel time.  NCP answered the complaint within the time limit.

NCP answered that the complaint was not acceptable and asked for the case to be dismissed and both of our legal fees be paid by me.  The answer included interogatories and a request for my witness list and discovery.

Questions:

1)  I can't find anywhere in the answer what it is NCP wants as an outcome to this case, only that the petition I filed is unacceptable.  Should NCP have filed a counterclaim since they want  primary custody fo the oldest?

2)  Can NCP file a counterclaim at a later date?

3)  Does it make a difference to the court if NCP wants primary physical custody of one child as opposed to all the children?

4) Does the fact that the interrogetory only has financial questions mean that it is likely she will attempt to sue me for child support?

5) In what scenarios would a court be likely to force me to pay legal fees for NCP?

[notnew]

My opinion - not legal advice - I am in MD also.

She has not proceeded properly if you have not had a scheduling conference. Interroatories are part of discovery and discovery is not put in place until the scheduling conference is heard. Then you go to a pre-trial conference at which time discovery is supposed to be done at that time. You exchange witness and exhibit lists at the pre-trial conference. I am in the middle of a custody reversal and am sure of this process.

In her response, she has asked that the case be dismissed. Which is weird becuase asking for interrogatories and witness/exhibit list goes against that.

I'll let Soc handle the rest. He is the expert. I just thought that since I'm in MD too I'd chime in about what I know about.

[socrateaser]

>Questions:
>
>1)  I can't find anywhere in the answer what it is NCP wants
>as an outcome to this case, only that the petition I filed is
>unacceptable.  Should NCP have filed a counterclaim since they
>want  primary custody fo the oldest?

If the current orders provide you with primary custody, then yes, the NCP should have asked for affirmative relief to order custody/parenting be changed to reflect the new status quo, and provided evidence as necessary to support the request.

However, if the NCP waits until the hearing and simply states that the child is living with the NCP voluntarily, then it is possible that the court will view this as sufficient evidence to order a change, or at least an evaluation of the changed circumstances. So, it isn't absolutely necessary to respond.

>
>2)  Can NCP file a counterclaim at a later date?

Yes, but you must have sufficient notice, which is usually 15-30 days depending on jurisdiction. The penalty for late filing on your objection would be a continuance for a new hearing and possibly an order to the party who filed late to pay for the other party's costs of obtaining a constinuance (including attorney fees). Late notice will not prevent the introduction of otherwise relevant evidence, absent a finding of contempt.

>
>3)  Does it make a difference to the court if NCP wants
>primary physical custody of one child as opposed to all the
>children?

Usually yes, but not always where one child is clearly older/more mature than the others and can competently testify as to his/her reasons for wanting to change residences.

>
>4) Does the fact that the interrogetory only has financial
>questions mean that it is likely she will attempt to sue me
>for child support?

I don't know. It's possible that she is attempting to demonstrate your motive for wanting to maintain the status quo parenting is purely financial. This usually is a dead end, because the remedy for a parent having too little money is not to decrease/increase custody -- it's to provide the parent with more money, or order the parent to get a job (or a better paying job, or a full time job if the parent is only working part time).

>
>5) In what scenarios would a court be likely to force me to
>pay legal fees for NCP?

Equitable attorney fees are available in a family law action based on balancing one party's need with the other party's ability to pay, or as a sanction for a party acting in bad faith towards the other in the action or where there is a contempt of court.

If one party has much greater assets than the other, then that weighs favorably on his/her ability to pay, but not necessarily on the other party's need. If the other party has substantial assets, then the court may find that the requesting party has little need for reimbursement.

If one party intentionally frustrates settlement of the case, or wastes the court's time with a frivolous pleading, that weighs in favor of fee reimbursement.

Finally, conscious, willful disregard of a court order is contempt and attorney fees can operate as a sanction, and failure to produce requested unprivileged discovery is also sanctionable with an attorney fee order.

Whether your facts would permit reimbursement is unknown to me -- it is HIGHLY discretionary with the judge, and rarely overturned on appeal.