We are at wits end on this...Please Help!!

[db1163]

Dear Socrateaser,

I originally posted this on another site and then I came across this one.  I would appreciate feedback from you and others here.  Thanks in advance....(kinda lengthy/sorry!)

My husband and his exGF have a 14 yo son together. They both share legal custody, while she has physical custody (and receives child support). They had always agreed, since their son was a small child (3-4 yo), that once he reached puberty, he would go live with his father. That is, until he married. Then, the exGF, who's got issues too great to really go into in detail here, became resentful and backed out of the agreement.

After 2 years of them talking things out, she finally agreed that he could come live with us and for the past 7 months, kept insisting that she would take care of modifying custody through the court. When my husband flew in 2 weeks ago to see his son (we live in another state) and make sure everything was finalized, she dropped the bombshell on him that she has no intention of having custody changed.

She wants to "keep everything as-is" and let their son come live with his father "on a trial basis." Mind you, this man is an excellent father, has always been active in his son's life, and has always met his child support obligations—and then some. The son has visited with his father for extended periods in the past and there has never been a problem.  Now, she acts as though there is reason for caution/concern.

As for her so-called concern, there is no doubt on her part that he is in good hands here with us. The child is very close with his father and WANTS to come live with us. He and I get along fine. I have never had any of the problems that a lot of step-parents face with step-children.

It's not an issue of her being concerned about her son's well-being. It's really about the fact that she is bitter and resentful that my husband moved on with his life, and not with her.

One of the comments she made just 2 weeks ago, when he confronted her about not submitting the request to change custody, was "I wasn't good enough for you." That, and other comments she's made since we've been married, makes it obvious that she has not let go of the past.  And, they haven't been together for over a DECADE...11 years to be exact!

When she refused to modify the custody, (for his protection) my husband asked her to at least provide a notarized letter stating that she gives permission for the child to come live with us.  The notarized letter was mainly to protect my husband from her being able to accuse him of being in contempt of the current custody order, which only gives him "visitation." The intent of the letter was for us to be able to show the court that she granted permission for the child to live with us and hopefully get custody that way.

My thinking, since we know that she absolutely will not have the custody order modified, is to just let the custody/child support orders stay as-is for the time being. Then after about 6 months, when he can show that his son is adjusted and doing well in school (right now he's getting all D's and F's), etc, etc, he would be in a much better position to persuade the court to grant him custody, especially with the letter from her giving permission for the child to live with us.

She agreed to write the letter, however, when he got it yesterday, it stated that she was giving permission for the child to live with his father "for ONE YEAR" and that "she and the father AGREED that the father would CONTINUE TO PAY CHILD SUPPORT PAYMENTS TO THE MOTHER" during that time!!

Here we are, only a few days before the child flies out to live with us and she pulls this. My husband had in NO way agreed to that! This is extortion!  Why should he pay her child support for an entire year while the child is living with him?

I could go on and on, but, bottom line is, she is being selfish and wants to manipulate and maintain control over my husband. She is trying to get back at him out of anger/hurt/resentment that things didn't work out between them. It's really sad, because in the end, it's her own son that is being hurt the most by all this.

I realize that we have to go through the court in order to change custody/stop support. My question is, what is the likelihood that it would be changed/stopped IF we take it to court...based on the letter; based on the child's desire to be with his father; based on the marked improvement in his grades etc, etc? If we wait until the child has been with us for at least six months, will that improve our chances? IOW, what length of time is considered status quo (I think that's the term??)? Or, will the court likely give preference to her and the stipulations in her letter, which state only one year, with CS going to her for that year? (BTW, the Custody/CS orders were granted in Maryland.)

 Thanks for your feedback.

[socrateaser]

1. What State will the child be residing in with the Father?

2. Post the EXACT contents of the consent letter (but without names), and,

3. Is the letter notarized?

4. In which State do mother and child currently reside?

[db1163]

>1. What State will the child be residing in with the Father?
     
For now, we will be in Hawaii, however, my husband is in the military and we are due to relocate to Georgia at the end of the year.  We anticipate being there for at least 4 years.

>2. Post the EXACT contents of the consent letter (but without
>names), and,

TO WHOM IT MAY CONCERN:

This letter is to acknowledge that I am allowing my son, XXXX X XXXXX, to reside with his father, XXXXX XXXXX. XXXX (son) will be staying with his father for the 2004-2005 school year.  The time frame will begin July 22, 2004 through June 15, 2005.  During this time I will continue to receive child support from his father, however, Mr. XXXXX (father) and I have agreed that the money will be returned to him.

Thank you,

XXXXX XXXXXXX

>3. Is the letter notarized?

Yes, it is.

>4. In which State do mother and child currently reside?

Maryland.

Thanks again for any advice you can offer.

[socrateaser]

Under Hawaii law, a petitioner can request a modification of custody prior to the child residing in the State for more at least six consecutive months (aka, "home state" status), on the grounds that Hawaii is the more appropriate forum for a custody determination/modification. The court that must relinquish custody, in your case, Maryland, may consider the following factors, in deciding whether to relinquish jurisdiction:

(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) The length of time the child has resided outside this State;

(3) The distance between the court in this State and the court in the state that would assume jurisdiction;

(4) The relative financial circumstances of the parties;

(5) Any agreement of the parties as to which state should assume jurisdiction;

(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;

( The familiarity of the court of each state with the facts and issues in the pending litigation; and

(9) The physical and psychological health of the parties.

On your facts, the notarized letter, could be argued as an implied grant of jurisdiction to a Hawaii court, thereby satisfying factor #5, above.

And, as the mother has delegated her custody rights to the father via the notarized letter for one year, it is easy to see that "home state" status will eventually be granted to the father, if he remains in Hawaii for the next six months.

The difficulty here, is that your facts also show that you are likely to be relocated to GA right around the six month mark. This could make things a little more messy, however, I would think that, as the months progress, and if the child is doing well at home and in school, that the Maryland court will be more and more likely to relinquish jurisdiction to Hawaii.

On the separate issue of the mother demanding child support contine regardless of the residence of the child, (1) You didn't agree, only she did, so it's not a contract, (2) even if it was, any attempt to condition custody upon the payment of money is against public policy and therefore void. You called it extortion, which is not, because extortion requires you to do something that you ordinarily wouldn't have to do, via intimidation by force or fear or threat thereof. However, it IS "involuntary servitude," (slavery) i.e., she is renting her child to you, for a specified price, and that ain't gonna fly anywhere.

Now, the fact that you have a notarized consent from her means that you can submit the consent as proof of her intent to relinquish the child to your care for at least one year. This is very weighty evidence of a substantial change in circumstances affecting the child's best interests, and that will get you a new custody hearing, if not in a Hawaii court, then most certainly in a Maryland court.

On the support issue, if you stop paying, then the mother will demand the child's return, which could make things sticky. On the other hand, if you pay, you may never see the money again.

You could argue that the mother's demand for payment in return for relinquishing custody is abuse "per se," i.e., if it's the functional equivalent of slavery, then how much more abusive can it be?

On this ground you could ask a Hawaii court for an emergency temporary custody order right now, as there is no 6 month residency requirement for such an order, if you can show mistreatment or abuse by the other parent.

I think what I would do is to wait about 30-60 days, and if all is going well with you and the child, then I would file for a custody determination in Hawaii, and simultaneously ask for an emergency order.

You'll lose a few bucks in support that you'll never see again, but so what? After that, you will have the child and the support.

[db1163]

Dear Socrateaser,

I originally posted this on another site and then I came across this one.  I would appreciate feedback from you and others here.  Thanks in advance....(kinda lengthy/sorry!)

My husband and his exGF have a 14 yo son together. They both share legal custody, while she has physical custody (and receives child support). They had always agreed, since their son was a small child (3-4 yo), that once he reached puberty, he would go live with his father. That is, until he married. Then, the exGF, who's got issues too great to really go into in detail here, became resentful and backed out of the agreement.

After 2 years of them talking things out, she finally agreed that he could come live with us and for the past 7 months, kept insisting that she would take care of modifying custody through the court. When my husband flew in 2 weeks ago to see his son (we live in another state) and make sure everything was finalized, she dropped the bombshell on him that she has no intention of having custody changed.

She wants to "keep everything as-is" and let their son come live with his father "on a trial basis." Mind you, this man is an excellent father, has always been active in his son's life, and has always met his child support obligations—and then some. The son has visited with his father for extended periods in the past and there has never been a problem.  Now, she acts as though there is reason for caution/concern.

As for her so-called concern, there is no doubt on her part that he is in good hands here with us. The child is very close with his father and WANTS to come live with us. He and I get along fine. I have never had any of the problems that a lot of step-parents face with step-children.

It's not an issue of her being concerned about her son's well-being. It's really about the fact that she is bitter and resentful that my husband moved on with his life, and not with her.

One of the comments she made just 2 weeks ago, when he confronted her about not submitting the request to change custody, was "I wasn't good enough for you." That, and other comments she's made since we've been married, makes it obvious that she has not let go of the past.  And, they haven't been together for over a DECADE...11 years to be exact!

When she refused to modify the custody, (for his protection) my husband asked her to at least provide a notarized letter stating that she gives permission for the child to come live with us.  The notarized letter was mainly to protect my husband from her being able to accuse him of being in contempt of the current custody order, which only gives him "visitation." The intent of the letter was for us to be able to show the court that she granted permission for the child to live with us and hopefully get custody that way.

My thinking, since we know that she absolutely will not have the custody order modified, is to just let the custody/child support orders stay as-is for the time being. Then after about 6 months, when he can show that his son is adjusted and doing well in school (right now he's getting all D's and F's), etc, etc, he would be in a much better position to persuade the court to grant him custody, especially with the letter from her giving permission for the child to live with us.

She agreed to write the letter, however, when he got it yesterday, it stated that she was giving permission for the child to live with his father "for ONE YEAR" and that "she and the father AGREED that the father would CONTINUE TO PAY CHILD SUPPORT PAYMENTS TO THE MOTHER" during that time!!

Here we are, only a few days before the child flies out to live with us and she pulls this. My husband had in NO way agreed to that! This is extortion!  Why should he pay her child support for an entire year while the child is living with him?

I could go on and on, but, bottom line is, she is being selfish and wants to manipulate and maintain control over my husband. She is trying to get back at him out of anger/hurt/resentment that things didn't work out between them. It's really sad, because in the end, it's her own son that is being hurt the most by all this.

I realize that we have to go through the court in order to change custody/stop support. My question is, what is the likelihood that it would be changed/stopped IF we take it to court...based on the letter; based on the child's desire to be with his father; based on the marked improvement in his grades etc, etc? If we wait until the child has been with us for at least six months, will that improve our chances? IOW, what length of time is considered status quo (I think that's the term??)? Or, will the court likely give preference to her and the stipulations in her letter, which state only one year, with CS going to her for that year? (BTW, the Custody/CS orders were granted in Maryland.)

 Thanks for your feedback.

[socrateaser]

1. What State will the child be residing in with the Father?

2. Post the EXACT contents of the consent letter (but without names), and,

3. Is the letter notarized?

4. In which State do mother and child currently reside?

[db1163]

>1. What State will the child be residing in with the Father?
     
For now, we will be in Hawaii, however, my husband is in the military and we are due to relocate to Georgia at the end of the year.  We anticipate being there for at least 4 years.

>2. Post the EXACT contents of the consent letter (but without
>names), and,

TO WHOM IT MAY CONCERN:

This letter is to acknowledge that I am allowing my son, XXXX X XXXXX, to reside with his father, XXXXX XXXXX. XXXX (son) will be staying with his father for the 2004-2005 school year.  The time frame will begin July 22, 2004 through June 15, 2005.  During this time I will continue to receive child support from his father, however, Mr. XXXXX (father) and I have agreed that the money will be returned to him.

Thank you,

XXXXX XXXXXXX

>3. Is the letter notarized?

Yes, it is.

>4. In which State do mother and child currently reside?

Maryland.

Thanks again for any advice you can offer.

[socrateaser]

Under Hawaii law, a petitioner can request a modification of custody prior to the child residing in the State for more at least six consecutive months (aka, "home state" status), on the grounds that Hawaii is the more appropriate forum for a custody determination/modification. The court that must relinquish custody, in your case, Maryland, may consider the following factors, in deciding whether to relinquish jurisdiction:

(1) Whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) The length of time the child has resided outside this State;

(3) The distance between the court in this State and the court in the state that would assume jurisdiction;

(4) The relative financial circumstances of the parties;

(5) Any agreement of the parties as to which state should assume jurisdiction;

(6) The nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) The ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence;

( The familiarity of the court of each state with the facts and issues in the pending litigation; and

(9) The physical and psychological health of the parties.

On your facts, the notarized letter, could be argued as an implied grant of jurisdiction to a Hawaii court, thereby satisfying factor #5, above.

And, as the mother has delegated her custody rights to the father via the notarized letter for one year, it is easy to see that "home state" status will eventually be granted to the father, if he remains in Hawaii for the next six months.

The difficulty here, is that your facts also show that you are likely to be relocated to GA right around the six month mark. This could make things a little more messy, however, I would think that, as the months progress, and if the child is doing well at home and in school, that the Maryland court will be more and more likely to relinquish jurisdiction to Hawaii.

On the separate issue of the mother demanding child support contine regardless of the residence of the child, (1) You didn't agree, only she did, so it's not a contract, (2) even if it was, any attempt to condition custody upon the payment of money is against public policy and therefore void. You called it extortion, which is not, because extortion requires you to do something that you ordinarily wouldn't have to do, via intimidation by force or fear or threat thereof. However, it IS "involuntary servitude," (slavery) i.e., she is renting her child to you, for a specified price, and that ain't gonna fly anywhere.

Now, the fact that you have a notarized consent from her means that you can submit the consent as proof of her intent to relinquish the child to your care for at least one year. This is very weighty evidence of a substantial change in circumstances affecting the child's best interests, and that will get you a new custody hearing, if not in a Hawaii court, then most certainly in a Maryland court.

On the support issue, if you stop paying, then the mother will demand the child's return, which could make things sticky. On the other hand, if you pay, you may never see the money again.

You could argue that the mother's demand for payment in return for relinquishing custody is abuse "per se," i.e., if it's the functional equivalent of slavery, then how much more abusive can it be?

On this ground you could ask a Hawaii court for an emergency temporary custody order right now, as there is no 6 month residency requirement for such an order, if you can show mistreatment or abuse by the other parent.

I think what I would do is to wait about 30-60 days, and if all is going well with you and the child, then I would file for a custody determination in Hawaii, and simultaneously ask for an emergency order.

You'll lose a few bucks in support that you'll never see again, but so what? After that, you will have the child and the support.