Contempt charges and filing for Change of Circumstance

[ksmomof2girls]

I got served with papers earlier this week for a hearing from the Court Trustee in my county(Sedgewick, Kansas) for contempt on back child support.  I am roughly a little over 3,000 behind.  From May 2004 to current I have been unable to work. I know that I will be able to prove from Aug or Sept on that I have been unable to work.   I am still recovering from shoulder surgery and still having a lot of problems with my neck.

I believe my EH is doing this so I will be found in contempt and won't be able to file anything on him concerning change of circumstance since him and SM are divorcing.

My questions are:

1. IF I am found on contempt, how damaging is that IF I do decide to file change of circumstance to get custody?

2. Do you know if I can file for mod of c.s. at the same time of the hearing?

3. Besides Medical papers, what all should I take to the hearing?

Thanks a lot.
 

[socrateaser]

>My questions are:
>
>1. IF I am found on contempt, how damaging is that IF I do
>decide to file change of circumstance to get custody?

Depends upon the judge. I can't really tell you. A contempt for failure to pay support is conclusive proof of a parent acting against his/her child's best interests, so it would carry some weight in any custody hearing.

>2. Do you know if I can file for mod of c.s. at the same time
>of the hearing?

You don't file at a hearing -- you file your motion to modify with the clerk's office. You should file for a support mod immediately, if you haven't done so already, because the court is forced to assess arrears against you until such time as you do, and under federal law, you cannot obtain a retroactive downward modification. In short, if you haven't already filed for a support mod, then you need to do so IMMEDIATELY!!! (i.e., tomorrow morning).


>3. Besides Medical papers, what all should I take to the
>hearing?

The prima facie case for contempt for failure to pay support is (1) a valid, enforceable support order exists, (2) the defendant knows of the order, (3) defendant failed to pay. Proving support contempt is therefore a trivial issue. It then falls to you to demonstrate that you did not have the ability to pay.

Losing your job doesn't necessarily prove that you couldn't pay, i.e., that you had no savings or borrowing power. In order to avoid the contempt, you must show the court that you couldn't pay under any circumstances. This is why you should always file for a downward mod, the day that you are unemployed or unable to work.

You don't need to show the court anything, but you must at a minimum, testify, that you have no savings or borrowing power and that you had to choose between eating and housing yourself, or paying the support. If you want to bring bank statements showing that you have no money in checking and savings and billing statements for your housing and food, utilities, etc., then that may help convince the judge that you didn't have the ability to pay.

Otherwise, you'll be found in contempt. I can't say if the court will impose additional sanctions against you -- that's up to the judge.

[Stirling]

If your health issues are so severe that they keep you from working, how is it that you will be able to care for your children full time if custody is changed?

[ksmomof2girls]

They are not that severe.  I just can't sit at a computer for 8 hrs a day, do a lot of heavy lifting or keep my neck in one postition for long periods of time.

Just being on here for 10 mins, I'm already hurting and getting a cramp in my neck muscles.  I also get headaches from it hurting so badly.

[Stirling]

Post contents deleted by moderator.

[socrateaser]

You may offer your experience and support but only I offer legal advice in this forum.

Thanks in advance.

[Stirling]

I apologize if I violated some kind of board policy that is not contained within the Mandatory Form Guidelines.  I also didn't realize that my post met the definition of rendering "legal advice".  My intent was merely to help the original poster.  

[socrateaser]

Maybe the policy doesn't specifically state that, huh? I will need to fix this. Thanks for alerting me to the issue. Anyway, no worries, I just don't like to get into differences of opinions here, because it may confuse the original poster.

I appreciate your interest.

[Stirling]

Post contents deleted by moderator.

[socrateaser]

You may offer your experience and support but only I offer legal advice in this forum.

Thanks in advance.