looking for help

[Stepmom0418]

When SS was born he lived with BM for about 3 months. During that time CS agency got an order for support on DH because BM was recieving welfare.

A month after that order there is another order entered for MEDICAL only naming a caretaker, not BM. The caretaker requested no support but must have had the child on medical through the state

During the 5 year period that the caretaker was careing for SS BM was recieving CS payments and there is past due support during this time as well.

Both cases are under the same CO in the same county. There is no order entered for BM to pay support only DH during that 5 year period. and BM gets the support even though she did not have SS.

The CS agency says there is nothing they can or will do although they do see why DH would question this.


1) Does this seem right to you?

2) If your answer is no what do you suggest DH doing to fix this.

3) There is a current custody case going on, can DH address this during the custody case or does it all need to go through the same county in which it was started?

[socrateaser]

>1) Does this seem right to you?

It may be legally enforceable, which is all that CSE cares about -- as to whether it seems just, fair, appropriate, or moral, I'll leave that to you to decide.

>
>2) If your answer is no what do you suggest DH doing to fix
>this.

Q1: When you write of a "caretaker," do you mean that there is a legal guardian for the child?

Q2: Is there a court order designating the guardian, or is the "caretaker," merely delegated, either in writing or verbally, by the custodial parent?

>
>3) There is a current custody case going on, can DH address
>this during the custody case or does it all need to go through
>the same county in which it was started?

Probably, but I don't have enough facts, yet.

[Stepmom0418]

Q1: When you write of a "caretaker," do you mean that there is a legal guardian for the child?

There is no co involved in regards to the caretaker except the medical support order only order. The caretaker is grandma (BM's mom) if that makes a diffrence.

BM left the child with the caretaker and it was verbal or maybe just written between the caretaker and BM. No CO involved in the guardianship.

I hope this answers your questions and thank you!

[socrateaser]

OK, it appears that the custodial parent (CP) delegated her day-to-day duities to her mother. You could have moved for custody at that time, and very likely prevailed and obtained primary custody, but now, from your facts, it appears that the CP has, once again, resumed her role as caretaker, and unless that just occured in the past few weeks, the court could rule that there has really been no change at all, and the mother's actions were all done in the child(ren)'s best interests -- demonstrating that she is a good caretaker -- while you, having failed to ask the court to let you exercise your physical custody rights, even though you had 5 years in which to do so, will not look that terrific.

As for the support issue, each child support payment becomes a property right of the recipient on the day that it becomes due and payable, so you cannot get credit for any money that you paid in the past.

You can ask the court to find the CP in contempt for failing to use the money for the support of the child. In order to do this, you would have to prove that she didn't spend the money on the child. This will not be easy to do, because you would need to do a forensic accounting of the CP's past expenditures over 5 years, and that could cost you a bit of money.

And, it's more than likely that the grandmother will not testify in your behalf in this endeavor.

So, basically, you're SOL.

[Stepmom0418]

Thank you for your response! I also wanted to add that the reason that DH never asked for the change in custody during the 5 years that grandma had ss was because there was no visitation allowed and he did not know where ss was living. BM and grandma would only allow DH visitation in their presents. There was no co at the time.

Now DH has court ordered visitation and joint legal custody. Since he has filed the action with the courts BM has still denied visitation whenever she wants to. Also BM took ss to live with her at the time she found out DH was taking her to court for visitation rights.

Grandma has been arrested and charged with drug charges twice in the past 2 years, which we just found out about. Bm has been charged with intent to do bodily harm among other charges. BM is living with a man that has been charged with numerous charges, including consealed weapons, public intox several times, and also has had a child removed from his home by the state and had his rights terminated to that child as well. We have been looking for more info about this but have had very little luck because of it involving a  juvenile.

ss has missed over 70 days of school in the past 2 years. (kindergarten and first grade)


As for the cs DH is only concerned about what the cs agency is saying is past due support. It is alot of money and is payable to BM when BM never had the child. DH feels Bm should be partially responsiable to pay support as well and not recieve the support he has to pay since she was not the one taking care of ss.


question

1) Is there a way DH can get the past due support taken care of.

2) Could BM be responsible for 1/2 of it?

3) Could their be a "deal" made between BM and DH to settle this past due support that is due to her?

4) Do you feel any diffrent about the custody case coming up with the few facts mentioned above?

Thank you again!

[socrateaser]

>1) Is there a way DH can get the past due support taken care
>of.

Apparently, I didn't communicate well enough. The past due support (arrears) is a property right of the BM as of the date that each payment becomes due and payable. This means that the BM is entitled to it -- it is HERS, to do with as she wishes. And, if she wishes to spend it on herself, then you can't stop her, at least not in a Family Court.

You could sue BM in regular Civil Court, using what is known as a quasi-contract legal theory, i.e., a person who receives an unjust benefit at the expense of another, owes restitution of the value of the benefit received. Your argument would be that the child didn't benefit from any of the support, and that you, as next friend of the child, are suing to restore the benefit.

However, you will need to prove that the child didn't receive any benefit, which could be tough to do, especially if the grandmother testifies that she received support money, in cash, from BM (and, it sure doesn't seem to me that grandma is gonna testify on YOUR side in this case).

>
>2) Could BM be responsible for 1/2 of it?

Not in family court -- the money is hers, not the child's. It is presumed to be spent on the child. You will either need to have BM found in contempt, or sue in civil court, and overcome the presumption that the support money was spent on the child. If you succeed, the CHILD would be entitled to restitution of ALL of the support money not spend on him/her. You would still be in arrears, exactly as you are now, but now to the child, rather than to the parent.

>
>3) Could their be a "deal" made between BM and DH to settle
>this past due support that is due to her?

Yes, but you don't have a case to advance on this issue, as I've just explained.

>
>4) Do you feel any diffrent about the custody case coming up
>with the few facts mentioned above?

Drug charges, if proven, against grandma, would be a powerful demonstration that the BM doesn't act in the child's best interests -- credible proof of 70 days of missed school in two years, without good cause, is a much more powerful proof. That would be a pretty good case.