Change in custody

[olanna]

Dear Soc,

My 16 year old son came to live with me. His father was willing to take a settlement in exchange for *allowing* him to come back home.  He is now refusing to sign any papers to change custody, although he allowed our son to get on the plane and move out here.

My son has been here with me since late June. I suppose there are two ways I can go about this but I wanted your opinion.

First way:

File paperwork in SC and request a change of custody. In this, the agreement we were supposed to have was that he would forgive my arrears and I wouldn't ask for CS or money for college for our son. I could present the same agreement in my documents I would file in SC.

Second way:

Wait six months and let my home state of CA take jurisdiction, get the stuff transferred out here and basically ask for/offer the same thing.

It just all seems so silly and I would let it go, but I do want my arrears wiped clean before I lose my leverage with the CS issue.

Please advise.

Thanks in advance,

olanna

[socrateaser]

>First way:
>
>File paperwork in SC and request a change of custody. In this,
>the agreement we were supposed to have was that he would
>forgive my arrears and I wouldn't ask for CS or money for
>college for our son. I could present the same agreement in my
>documents I would file in SC.
>
>
>Second way:
>
>Wait six months and let my home state of CA take jurisdiction,
>get the stuff transferred out here and basically ask for/offer
>the same thing.
>
>It just all seems so silly and I would let it go, but I do
>want my arrears wiped clean before I lose my leverage with the
>CS issue.
>
>Please advise.

OK, you are attempting to negotiate a price in exchange for custody of your child and that is a contract with unlawful subject matter. People in the USA cannot be bought or sold, because it violates the 13th Amendment to the U.S. Constitution. You know...the one about slavery! LOL!

Your contract is void (unenforceable), and if you submit it to the judge you will both get your ears pinned back.

If you want to change custodial rights, you're welcome to do it. Similarly, if you wish to forgive the arrears, you can do that, too. But, both actions must be completely separate stipulated orders, without any apparent ties, so that you are both at risk if one of you backs out at the last second to try to get an advantage.

Furthermore, attempting to bargain for forgiveness on the arrears in exchange for not asking for college support is also unlawful. Parents cannot bargain away their child's rights to support. So, the court will not entertain this agreement, by itself, either.

You can bargain to offset future support for college, actually ordered, by stipulation between the parties, as against a past arrearage, because then you are dealing with two liquidated judgments that can each be enforced or offset against each other. But, you can't take a liquidated judgment and try to use it to offset some future support right, because, tomorrow you could win the lotto, and the child would be entitled to college support of a huge amount of dough, and why should the child be subject to the whim of his parents' prior agreement, when it's the child's right to support, not the parents'?

I suggest that you wait six months and file for custody on its own terms and without any reference to support or arrears. Then when the child is due college support, if you still owe on the arrears, you can put an order for college support in place and have the court offset what the father owes against what you owe on the arrears.

[olanna]

I never meant to make it sound like I was buying my son, but the courts sort of forced that. The judge took away all of my visitation (for arrears he had assigned that day) until my arrears were paid.  Well, so the story goes ....my CS order was for $792 a month and my arrears were set at $1000 a month. I had a very hard time making the $792 CS order every month, much less the $1000 in arrears.

So, as things go, I got behind. But fast forward to today....

He's back with me. And I don't want any money, I just want the one thing that judge in SC took away from me...I want to parent the child to which I gave birth. And now I can do that...

So I am going to take your advice, and after six months, I am going to file here.  

Again, I thank you for your advice.

;)