3 yrs of a verbal agreement outside of the order on file

[stepmom07]

My Husband is having to go back to court with his ex for primary custody of their two children, for the past 3 years they have not abided by the current order on file which gives him his children 8 days a month, and has him paying her child support, but they havent been doing that, they have each had the children every other week monday-monday dropping the kids off at school on monday to be picked up by the other that afternoon, and no child support was being paid because they had them equal amounts of time, then all of a sudden 3 months ago his ex sends a certified letter that she wants to go back to the court order on file, so my husband now wants primary custody and joint physical where what had been taking place for 3 years will be an order.  My husband is now scared that she will try to get him for 3 years of back child support...would a judge consider the fact that they have had equal time with the children up until 3 months ago and see that there was a verbal agreement or will that not stand in court?...my husband is going pro se because we cannot afford an attorney and we have nothing to sell and cannot get a loan for the amount we would need for an attorney...Does he have a chance?
Also during this time the mother has fabricated a false document stating a 90 day notice of her moving them and switching their schools and dating it with a date that she actually had sent a certified letter and we have no idea how to prove this...any ideas on what to do with this aspect? There is so much to this case i could probably go on for days.  I am sorry for such the long entry, but i am just frustrated and trying to research every possible avenue.

Thank you in advance for any help!
Tiffany

[socrateaser]

I am addressing your husband. I cannot answer you directly, and for the record, in the future do not post questions for your husband. Your husband must post for himself. See the mandatory forum rules for an explanation of why this is necessary. Thanks.

>Does he have a chance?

Maybe. Depends on local law. There's a lot involved.

Legally, support is due and payable on the date ordered, and failure to pay is contempt. You should have filed for a support mod as soon as it was obvious that the status quo was changing, so the court CAN enforce the support order and issue a judgment of arrears for all the unpaid amounts.

However, you can claim that the other parent will receive an unjust benefit at your expense, as the result of your legally unenforceable contract with the other parent, to eliminate support, if you are ordered to pay, in any amount greater than you would have had to pay, had support actually been modifed when the actual parenting arrangement was modifed by the parties agreement.

The court may then calculate the support which would have been due, and adjust the amount owed. This may not get you off the hook entirely, depending on the state uniform guidelines. However, per federal law, you will not end up in the position of being owed support, even if the other parent would have owed you, had you had a new support order entered previously, because federal law prohibits retroactive modification of a support obligation to the date of filing of the motion to modify.

Your achillies heel is that you need to be able to prove that you actually have been exercising equal custody to the court's satisfaction. If the other parent doesn't admit to the status quo, then your proving it could be difficult, although, in this case, I think that testimony from your significant other as to the fact that the child is regulary and routinely sleeping overnight in your home, should be sufficient -- but, no promises here.

>Also during this time the mother has fabricated a false
>document stating a 90 day notice of her moving them and
>switching their schools and dating it with a date that she
>actually had sent a certified letter and we have no idea how
>to prove this...any ideas on what to do with this aspect?

I don't understand the sequence of events in your facts. Please clarify.