CS Checks Uncashed

[inlimbo]

Dear Socrateaser,
 
 Both parties reside in Florida. CS was ordered in Florida in 2004.
 
 I am the non custodial parent who is paying CS. I went to the CS

website to view the account, but couldn't pull it up. I then called the

State of Florida Disbursement Unit who informed me that as of

yesterday there is over $12,000.00 sitting in the account. That my ex

wife has never accessed the account, and has refused to give them her

address.
 
According to the woman I talked to yesterday the money will sit in the

account indefinitely until my ex accesses the account.
 
Our son will turn 18 in  November, but will be in school until next May.

According to Florida Statutes I have to continue paying CS until he

finishes school.
 
 Question #1: Can I petition the court to cease CS in November since
 
 she has never accessed the account?
 
Question #2: Are there any other recourses I can pursue?
 
Thank You In Advance.

[williaer]

Just a thought- but maybe when your child turns 18, they will just give it to him? Perhaps he should look into getting it- since it is to support him- she is, in a sense "injuring" him by not accessing his support monies and using them for his well being. Have you asked her why she isn't taking the money?

[socrateaser]

>Just a thought- but maybe when your child turns 18, they will
>just give it to him? Perhaps he should look into getting it-
>since it is to support him- she is, in a sense "injuring" him
>by not accessing his support monies and using them for his
>well being. Have you asked her why she isn't taking the money?

A court order for child support is awarded to the obligee parent -- it is not a property right of the child. To award the money to the child directly would effect an unconstitutional private taking by government, from the obligee parent to the child.

This is an odd legal fiction, but it's just the way things have been done since the beginning of equitable child support. The obligee parent receives "support," which may be used at her discretion (absent some statute that requires use for the child's benefit).

Interestingly, support is not a property right of the obligee parent, either, until it becomes due and payable at the end of each pay period. If it were a property right before that instant, then that would mean that the amount of support could never be increased or reduced, based upon changes in circumstances, because the court would be depriving the obligee parent of a vested property interest, without due process.

However, if there is evidence that the parent is not using the money for the child's benefit, that could represent a substantial change in circumstances affecting the child's best interests, because failure to use the money, arguably diminishes the child's quality of life, and so the affirmative act of not accepting the money demonstrates that the obligee parent may not be the best day-to-day caretaker.

There is nothing that would prevent the child support laws to be written in a manner that creates a trust in favor of the child, with the obligee parent as trustee, and in that case, you could argue that the trustee/obligee has breached her fidicuary duty to the child, which would entitle the child to obtain the funds directly, or even entitle a substitute trustee to be appointed. But, this isn't how the law is constructed, so there's no point in even contemplating these options.

The best move for the obligor parent is to try to get the obligee parent to admit before a disinterested witness or on a lawfully made recording that she doesn't want the money and she will not use it for the child's benefit. That would provide evidence of the parent's unwillingness to act in the child's best interests, and that would give the noncustodial parent a shot (albeit a very long shot) at a new custody hearing.

But, that still wouldn't get the money back to the obligor or awarded to the child.

There is only one way that the child can obtain the money directly: if the obligee parent dies. In which case the funds would be distributed either under the decedent's Will or, if the decedent dies without a Will, via the intestacy statutes. This could also mean that someone other than the child might receive the money. In fact, the obligee parent could Will the money back to the obligor parent and that would then be perfectly legal.

But, the state can't just give it to the child on the argument that it was meant for the child's benefit -- because, legally it's not -- it's meant for the obligee parent's benefit...believe it or not!

[socrateaser]

> Question #1: Can I petition the court to cease CS in November
>since
>
> she has never accessed the account?

You can move for a support mod on grounds that the other parent, by her never accepting any of the money, impliedly deonstrates by her conduct, that she believes that it is in the child's best interests that no support be paid. However, unless the other parent fails to answer your motion at all, or consents to no support being paid, you will not prevail and the court will continue to impose support.

>
>Question #2: Are there any other recourses I can pursue?

Yes, you can move for a new custody hearing. See my comments to the other poster in this thread.

[williaer]

Fascinating that child support "can't" be given to a child- when it is to be used for the benefit of the child. I figured it wasn't possible- that would make way, way too much sense...and if there is one thing we've learned in family law...

[inlimbo]

Thank you for your fast response. I don't think going for custody will be

worth it since our son will be 18 in two months, and it would take two

months just to get into court.

I am just perplexed with the situation.

Thanks again for your words of wisdom.

[inlimbo]

LOL  It sure has been one heck of a roller coaster ride that's for sure.

And just when you think the ride is over...you get yanked back on.

Take care :-)