CS and Visitation Expectations

[askray]

Hi Soc, thanks for your help:)

My situation:  NCP, unwed father of a 4 month old daughter, all parties living in Mass.  Since DOB, I've paid $225/week in CS to ex-gf and have bought all formula, diapers, wipes, ect., all good records.

Ex has a 9 year old son from a previous marriage and is payed $170/week in CS.

I did the CS guidelines worksheet and found that I'll pay around $215/week, $10 less than I was paying under our 'informal' agreement.

The ex filed for CS through the Mass Dept. Of Revenue DOR on Aug. 5th.  I received a letter from the DOR dated Aug. 6th telling me that court action was being initiated and not to pay CS directly to my ex as I wouldn't receive credit for it.

*-Exact Quote from letter; "As of the date of this letter, we cannot give you credit for any child support paid directly to the custodial parent named above.  If you are making payments directly to the custodial parent and you wish to receive credit, please contact DOR's Customer Service Bureau at the number below to arrange payment through DOR."

I have paid up until the date of the letter, Aug. 6.

I know my daughter needs the financial support NOW, and when I called DOR, they said if I do pay through them, the money will not get to her until there is a formal CS order established.

Ex says she called DOR and they told her I should be paying her directly right now and if I don't, there will be retroactive CS due when the order is established.

My questions:

1). Could there be negative consequences above and beyond losing credit of ignoring the DOR's instructions and paying my ex directly until the CS order is set?

2). Is it true that the CS order will be retroactive to the file date?

3). Are there any options to get my daughter paid NOW without putting myself at ANY risk?

4). Can I argue to deviate from the guidelines based on the fact that her 9 year old is getting $170/week in CS, so how could an infant require more?  Is that a valid argument?

5). Because I live 1 and 1/2 hours away, ex says I have to visit with my daughter at my ex's house, (under her supervision/influence no less!).  Could I expect a deviation based on substantial travel costs?

6). Will it reflect badly on me in court that I stopped paying directly once I received the letter from the DOR?

7). Is the distance between our homes, (70 miles), too long for overnight visitations at my home or is it reasonable to ask for when I file for the visitation agreement?

8). Where do I contribute to that 'Vacation Fund' of yours I read about in a previous post?
Thanks again:)

[socrateaser]

>My questions:
>
>1). Could there be negative consequences above and beyond
>losing credit of ignoring the DOR's instructions and paying my
>ex directly until the CS order is set?

No, probably not any legal negatives.

>
>2). Is it true that the CS order will be retroactive to the
>file date?

Yes.

>
>3). Are there any options to get my daughter paid NOW without
>putting myself at ANY risk?

If you mean can you pay now and not have to pay again later, probably not, unless you go before a real judge instead of a DOR hearing officer, and plead for equity on the grounds of unjust enrichment from the court.

>
>4). Can I argue to deviate from the guidelines based on the
>fact that her 9 year old is getting $170/week in CS, so how
>could an infant require more?  Is that a valid argument?
>

No, child support is based upon the parents' ability to pay, not the child(ren)'s needs.

>5). Because I live 1 and 1/2 hours away, ex says I have to
>visit with my daughter at my ex's house, (under her
>supervision/influence no less!).  Could I expect a deviation
>based on substantial travel costs?

Not from a DOR officer. Maybe from a judge.

>6). Will it reflect badly on me in court that I stopped paying
>directly once I received the letter from the DOR?

Put the money in a trust account with the child's name on it, then when it comes time to deal with the arrears you can tell the court that you have all of the arrears safely put aside for your child.
>
>7). Is the distance between our homes, (70 miles), too long
>for overnight visitations at my home or is it reasonable to
>ask for when I file for the visitation agreement?

Depends on lots of facts that you haven't provided about how you both came to live 70 miles apart, so I can't answer.

>
>8). Where do I contribute to that 'Vacation Fund' of yours I
>read about in a previous post?
>Thanks again:)

I'm going to Cancun soon, so I'll let you know.

[askray]

Thanks Soc.

Couple of follow up questions:

What did you mean by going before a real judge?  I was told by the DOR when I called that there would be a court date set and a judge would decide the order?

If it's true that this will be done with a DOR officer, can I change that to have this go to a judge?  How could I do that?

What did you mean by pleading equity from unjust enrichment of the court?  Plz forgive my legal ignorance.

We've always lived 70 miles apart.  We dated for 4 months before she became pregnant, and I stayed there overnight a few times, but we were always living 70 miles apart.  We've both lived in our respective towns/counties for our whole lives.  Is it too far away for my daughter to be able to stay overnights?

I thought about opening accounts for my daughter, (not just for the arrears).  If a trust account is opened in her name, would the money go to ger mother if something happened to me?  Is there any way to protect money from going to the ex while in my daughter's name?

Thanks again

[socrateaser]

>Thanks Soc.
>
>Couple of follow up questions:
>
>What did you mean by going before a real judge?  I was told by
>the DOR when I called that there would be a court date set and
>a judge would decide the order?

Well, if that's how it's done in your jurisdiction, then i take back what i said. you can make your case to a real judge.

>
>If it's true that this will be done with a DOR officer, can I
>change that to have this go to a judge?  How could I do that?

I don't know. I don't practice MA law.

>
>What did you mean by pleading equity from unjust enrichment of
>the court?  Plz forgive my legal ignorance.

Unjust enrichment occurs when a person receives an unjust benefit at the expense of another. If you pay child support during a period of time that you are not ordered, it would be unjust to order you to pay again for the benefit of the recipient of the support. Therefore, the court should not permit the recipient two recoveries during the support period.

>
>We've always lived 70 miles apart.  We dated for 4 months
>before she became pregnant, and I stayed there overnight a few
>times, but we were always living 70 miles apart.  We've both
>lived in our respective towns/counties for our whole lives.
>Is it too far away for my daughter to be able to stay
>overnights?

No, but it's not condusive to a 50/50 custody share, either. Move closer.

>
>I thought about opening accounts for my daughter, (not just
>for the arrears).  If a trust account is opened in her name,
>would the money go to ger mother if something happened to me?
>Is there any way to protect money from going to the ex while
>in my daughter's name?

You're only putting money in for the time that you will likely get hit with an arrears order. After your permanent support order is in place, you won't need the trust account anymore.

[askray]

Thanks Soc.

Update:

The ex says she can't wait for the MA DOR to get a trial date.  She says she went to the local courthouse and filed for child support there.  My guess is, I'll now have two court dates.  One for the DOR and one without the DOR.

Couple more questions:

1). If I do have two court dates, do I have to go to both?  Does the ex have to go to both?  What happens if either of us don't go?

2). Is there a way to change it so that there is only one court date?

3). *(Unrelated) - My family and I want to set up some kind of savings account for my daughter, (not to pay for arrears but something she'll have until she is 18 at least).  Are there any types of accounts that can be opened in my daughter's name that will not go to her mother, (cp), if something should happen to me or my daughter?

Thanks again.

[socrateaser]

>Couple more questions:
>
>1). If I do have two court dates, do I have to go to both?
>Does the ex have to go to both?  What happens if either of us
>don't go?

What will probably happen is that the court will not permit this latest filing, if the DOR has actually filed on behalf of the custodial parent, unless she first withdraws her DOR case. But, assuming that the bureaucracies don't know what each other is doing (which is highly likely), then if your ex doesn't tell the court in her filing that there is already a case pending with DOR, then the court won't know and it will set both cases for hearing. When you receive the petition for the new court date, you should ask the court to either dismiss the DOR action, or consolidate both actions in the interests of judicial efficiency and because the outcome of one case will render the other case moot. There is a case file for both.

Also, there is nothing preventing the two of you from filing an agreed order (stipulated order) stating what you will pay, and thereby avoiding all of the hearings. This assumes that you are both in agreement on all of the issues. If not, then the court will need to resolve any disputes.

>2). Is there a way to change it so that there is only one
>court date?

See above.

>
>3). *(Unrelated) - My family and I want to set up some kind of
>savings account for my daughter, (not to pay for arrears but
>something she'll have until she is 18 at least).  Are there
>any types of accounts that can be opened in my daughter's name
>that will not go to her mother, (cp), if something should
>happen to me or my daughter?

This is a very complex question that requires a knowledge of the MA probate statutes that I do not have time to research at the moment. You can create a trust account (not some stupid bank account with your kid's name on it, but rather a full blown trust account with a third party trustee who will oversee the assets to the child's interests), and put money in that account. The problem is that at your death, the custodial parent can sue the trustee/executor of your estate for continued child support, and the court will almost certainly order it. And, even, if you attempt to write a will that bequeaths all of your assets to someone other than your minor child, your ex can get the probate court to have the will set aside to the extent that your child is entitled to your support.

About the only "legal" way to absolutely guarantee that your ex will not get her hooks into the proceeds of your estate, is to establish a trust account offshore, in Bermuda, or the Caymans, St. Kitts/Nevis, etc., where a U.S. court cannot order the proceeds used for child support. This will be very expensive, administratively, so if the amount of money iis less than oh...$250,000, I'd say you're probably wasting your energy.

You can, of course, convert all of your assets to cash as soon as you acquire anything, and then put the money in a safe and direct one of your relatives to never tell a living soul where the money is at, but then you'll be counting on your relative's honor in the event of your death, and my experience is that a sufficient amount of money will vitiate the honor of the most trustworthy person, so once again, big waste of time.

I could come up with some other methods, all of which would likely be unlawful, so I can't advise you on them without subjecting myself to disbarrment.

Now, if your FAMILY wants to set up a trust account, rather than you, then that's an entirely different thing. As long as you don't personally contribute any money to the account, then it will be immune from attack by your ex if you should die, because it was never your money, and so it's not subject to child support. Here again, though, as soon as the account names your child as a beneficiary, the mother can try to get the probate court to force the trustee to provide assistance to the child, and usually, especially in extremely liberal jurisdictions like MA, the court will probably force disgorgement of some of the income from the trust account.

So, if you trust your family, the best thing that you can do is to simply create an account in a family member's name and let that family member hold the dough without naming your child as beneficiary. Make sure that everyone in your family knows what you've done, then, if you die, hopefully your family's peer pressure will keep the money from ending up in the wrong hands.

But, like I said before -- this is the honor system, and money has a way of corrupting honor, so there's no guarantee that your wishes will be honored once you have passed on.

[askray]

Thanks Soc.

I had a few more cs-related questions:

The ex-gf and I are going to court to have a formal CS order set.  When I look at the CS guidelines for my state, (MA), I notice that daycare costs can be taken into account.

My daughter goes to daycare at her grandmother's house, (my ex's mother), M, T and W and goes to my ex's friend's house on T and F.

The ex doesn't pay her mother anything for daycare and pays her friend $35/day combined for both my daughter and my ex's 9 year old son from a previous marriage.

1). When we go to court to have the CS set, how would daycare costs factor into our final CS order based on the above arrangement?

2). Will she need to provide documented proof of the cost for daycare in order to factor daycare into the CS order?

3). Does it matter that neither daycare providers for my daughter are licensed?

4). If daycare is taken into consideration in setting the CS amount, do I have any say in who the daycare provider is?  Can I make her go to a licensed daycare provider?


Thanks again.

[socrateaser]

>Thanks Soc.
>
>I had a few more cs-related questions:
>
>1). When we go to court to have the CS set, how would daycare
>costs factor into our final CS order based on the above
>arrangement?

The primary parent is entitled to reimbursement for the actual cost of daycare, IF the daycare is related to maintaining actual employment or job training in pursuit of employment. Otherwise, daycare reimbursement is not authorized, because the parent is already being paid to personally care for the child.

You want copies of your ex's tax returns, so as to verify that she is reporting the daycare provider to the federal government (required by IRS rules). If she isn't, that would impeach her assertion that she is actually engaged in an arm's length transaction with her "friend," who may actually be giving her the money back in order to trick the court into forcing you to pay $35 per day. In my experience, women friends will not pay each other for services rendered like this. It is more likely that your ex is paying the actual cost of keeping the child. $35 per day isn't unreasonable for two kids, but you should try to make certain that this isn't a sham arrangement.
>
>2). Will she need to provide documented proof of the cost for
>daycare in order to factor daycare into the CS order?

Not if you don't demand it. This is trial practice 101. She has the burden of proof by a preponderance of evidence (which is any infinitely small amount more than 50%), that she is paying for daycare. So, if she testifies that she is paying for daycare, and you testify that you don't know whether or not she is actually paying for daycare -- she wins, because everyone is presumed to tell the truth in court, until they are found to be dishonest, or not credible.

Thus, if you seek to demonstrate that she is not paying for daycare, then you must have some evidence. You are entitled to discover her cancelled checks and her tax returns. If you ask for them and you don't get them, then you have the right to get a court order to compel their production. If you do this, and she still doesn't produce the evidence, then she can be held in contempt. However, if you don't advance your discovery rights, or you start the ball rolling and then don't follow through, and you show up in court without the necessary evidence to impeach her testimony, then you will lose this argument, because her testimony will prevail.

You could also subpoena the girlfriend, but why bother -- she's gonna lie about the arrangement. You want the hard evidence -- cancelled checks, and tax returns demonstrating that there is a real business contract for daycare between the two women.

>3). Does it matter that neither daycare providers for my
>daughter are licensed?

No. You can certainly report them, but most states have a threshold of the number of kids a person can care for before a license is required, and if it's just your two kids, that's almost certainly below the threshold. So, while reporting them may hurt them, it won't necessarily help your case. In fact, it could make your situation worse, because if your ex is forced to acutally use a real daycare provider (e.g., Kindercare(r)), then your part of the daycare cost is gonna be lots more than half of $70 per week.

>4). If daycare is taken into consideration in setting the CS
>amount, do I have any say in who the daycare provider is?  Can
>I make her go to a licensed daycare provider?

No. The day to day caretaker is entitled to make reasonable decisions as to how to spend support monies. Only if you can show that the money is being diverted entirely to the parent rather than the child, can you get the court to make orders to direct the money flow.

[askray]

SOC, you are awesome, thank you very much for all of your insight.  With a little luck and some good legal advice, my daughter may actually have a father.  Thanks for helping my daughter to have a father!

I just have one more question:

My ex refuses to let me see my daughter alone until there is a visitation order/parenting scheduled devised and made legal.  If I want to see her, I have to go to my ex's house and try to develop a parental bond under the constant supervision, influence and control of my ex, effectively minimizing any bond I try to build with my daughter.

Recently, things have been very sour between the ex and I.  She is starting to use words like I 'forced' her not to go on welfare after the birth of our daughter so I'm concerned that she will start making up lies about me when I'm there visiting my daughter.

Is there any way I could file for a 'temporary' visiting order allowing her to visit with me alone at my house so that I don't loose contact with her between now and the court date, (which could be months away)?

Thanks again.

[socrateaser]

>Is there any way I could file for a 'temporary' visiting order
>allowing her to visit with me alone at my house so that I
>don't loose contact with her between now and the court date,
>(which could be months away)?

You are a legal stranger to the child until you have legally established paternity, either by an acknowledgement, if that is accepted proof in MA (and, I don't know if it is or not), or by court order.

You will not be permitted to raise any custody issues at the support hearing, unless you have actually filed to establish paternity and custody. Once you file a petition to establish paternity, you can request temporary orders for joint custody and reasonable parenting time.

Try not to use the word visitation. It implies that your rights are subordinate to the other parent's. Speak only of joint legal custody and substantial parenting time.