Question regarding Child Support

[topnotchdad]

Case is in KY.

BM was never married to BF, and has never asked for CS through the courts before.  In 2001, BM married a wealthy man who works for his parents' company.  Before they got married, she quit her job, and has said several times that her husband doesn't want her to work; he feels it is his duty to support her.

BM is now demanding CS, claiming that she is a stay-at-home-mom (with 3 year old son she has with her husband), and therefore she claims she should not be assigned any income.  KY law states that she SHOULD be assigned income, based on her earning potential.  We have a paystub from the last job she had, with which we could argue her earning potential.  Furthermore, her youngest child is in daycare, so she technically doesn't even stay at home with him:  she just stays at home.

I should add that BM also has argued that she is disabled, and has a Dr.'s note that qualifies her for SSI/disability payments from the gov't.  However, she claims she does not collect them b/c she would rather collect CS from BF.

We have the child 50% of the time (week on/week off) but our lawyer advises that we probably still have to pay child support.  Our arguement is that BM quit her job BEFORE she even became pregnant with her young child, so when she and her husband decided that she would not work, his income becomes HER income.  Furthermore, she has always claimed child on her taxes, even after she quit her job.  If she is filing jointly with her husband (b/c she has no job, therefore no income, therefore should not be filing income taxes and claiming the child), and her husband is claiming the child on his taxes, his income should be used to calculate child support.

Furthermore, if BF has to pay the amount of CS according to KY law (assuming BM's husband's income is not counted), the child's lifestyle will become significantly altered.  For example, BF may not be able to afford to take family vacations, continue saving for child's college at the current rate, may not be able to replace his old car that keeps breaking down, will have to sell child's pony b/c can't afford to pay it's board, etc.  BM doesn't NEED the CS; she lives a much more luxurious lifestyle than BF b/c of her wealthy husband.

My questions:

1)  Is it reasonable to argue that since she quit her job BEFORE she even got pregnant with her young child that she "stays home" with, and that her husband urged her to quit so he could support her, that her husband's income should be considered as her income as well?

2)  Since her husband is currently claiming the child on his income taxes, shouldn't his income be the one used in calculating child support?

3)  If his income is considered, and part of his payment from his parents' company is "off the books" in the form of direct deposits into a bank account for him, gifts of cars, vacations, property, etc, can the "off the books" compensation be counted towards income and therefore child support payments?

4)  If BM truly is disabled, can she be compelled by the court to collect her SSI, since KY law states that any payment she receives based on the fact that she has children can be deducted from CS payments from BF?

5)  Can the judge make his own decision about CS based on the interests of the child instead of the "plug and chug" chart devised by the state?  Can we argue that it is not in the best interests of the child for BF to pay CS to BM?  Or are the state statutes pretty much the final word on the matter?

Thanks for your time!

[socrateaser]

>My questions:
>
>1)  Is it reasonable to argue that since she quit her job
>BEFORE she even got pregnant with her young child that she
>"stays home" with, and that her husband urged her to quit so
>he could support her, that her husband's income should be
>considered as her income as well?

You shouldn't argue it. You should depose the husband, confirm it, and then present that info at the hearing.

>
>2)  Since her husband is currently claiming the child on his
>income taxes, shouldn't his income be the one used in
>calculating child support?

No. This issue is the other parent's earning capacity. If you prove that she is capable of earning $X, but is actually earning $Y (or, in this case, $0), even though there is work available in the current job market for which she is qualified, at $X, then the court must impute $X-$Y, and use it in the support calculation.

It's just that proving $X usually requires a vocational evaluator to testify to the other parent's earning capacity after conducting an investigation. You may be able to prove it without an eval, but you'll need lots of credible third party evidence.

>3)  If his income is considered, and part of his payment from
>his parents' company is "off the books" in the form of direct
>deposits into a bank account for him, gifts of cars,
>vacations, property, etc, can the "off the books" compensation
>be counted towards income and therefore child support
>payments?

His income is not relevant, except as a means of asking for a deviation from guideline support, on grounds that by forcing you to pay support, this will lower your station in life as compared to the other parent's, and as both parents share substantially equal custody, this frustrates the intent of the legislature and federal law, which was to equalize, as much as possible, the money available for the child's support in each household, considering each parent's amount of parenting responsibility.

That argument that I just wrote is an honest argument for equity that should prevail with a judge, if you can reasonably show that the other parent's lifestyle is substantially better than yours.

>4)  If BM truly is disabled, can she be compelled by the court
>to collect her SSI, since KY law states that any payment she
>receives based on the fact that she has children can be
>deducted from CS payments from BF?

She can't be compelled to get benefits, but the court can impute the benefits to which she is entitled, so as to effectively force her to obtain benefits or lose money.

>5)  Can the judge make his own decision about CS based on the
>interests of the child instead of the "plug and chug" chart
>devised by the state?  Can we argue that it is not in the best
>interests of the child for BF to pay CS to BM?  Or are the
>state statutes pretty much the final word on the matter?

The guidelines are a rebuttable presumption affecting the burden of proof, and they are intended to be correct, except in cases where guideline support would be unjust or inappropriate. You can argue just that, as I have explained above, and the court has discretion to refuse to order support.

However, it's "broad discretion," and there's no guarantee that you will obtain what you believe to be a fair deal. It's very judge specific, and I don't know your judge.

[topnotchdad]

Hey Soc!

Our case is moving very slowly b/c  BM had to reschedule mediation b/c of illness.

Today we read in the paper that BM has been charged with "Theft by Deception" for $250 (we assume this is for passing bad checks), a misdemeanor.

If we bring this up in court, will it help us or hurt us?  I am thinking that this reflects negatively upon her character (which could help us gain custody), but also shows that she needs money (which wouldn't do much to convince the judge that she doesn't really need CS).

1)  Assuming that we can't reach an agreement in mediation, would it be wise to bring this up the Theft by Deception in our custody/CS hearing, or should we just ignore it and stick to our main points?

2)  Could the repeated fender-benders she has help us on custody issues (i.e. child isn't safe driving around with mom)?

[socrateaser]

>If we bring this up in court, will it help us or hurt us?  I
>am thinking that this reflects negatively upon her character
>(which could help us gain custody), but also shows that she
>needs money (which wouldn't do much to convince the judge that
>she doesn't really need CS).

You seem unusually well informed. Character evidence is generally inadmissible to prove present conformity with past behavior. However, character is admissible when it is directly at issue, as is the case in a custody dispute. Fitness to parent is largely a question of character, so under this theory, character evidence of the other parent is admissible.

However, an arrest is not a crime, it's just an arrest, so unless you plan to prove that the other parent actually committed theft by deception (aka, larceny by trick), then evidence of the arrest, by itself will probably be deemed inadmissible as more prejudicial than probative, i.e., likely to unfairly bias the court's decision as compares to other facts in the case.

I think that unless the other parent pleads guilty or is tried and found guilty, prior to your custody trial, that the court will probably not allow this evidence in. But, it's a close call.

>1)  Assuming that we can't reach an agreement in mediation,
>would it be wise to bring this up the Theft by Deception in
>our custody/CS hearing, or should we just ignore it and stick
>to our main points?

Bouncing a check for insufficient funds is no big deal. Actually being charged with theft is quite unusual on a bounced check, because it means that the state believes it can prove that the defendant knew at the time that the check was offered in payment, that te check would not clear. Another way of saying this is that the defendant had the specific intent to trick the merchant into handing over possession of the property, with the intent to permanently deprive, when writing the check. This is not easy to prove, unless there is a gross disparity between the size of the check, and the amount in the account.

Which is why the DA rarely prosecutes such cases unless the check is written for a very large sum of money (e.g., greater than $25,000). Under such circumstances, a person whose checking balance is never greater than a few hundred dollars, can hardly be said to be bouncing a check when the check is 50 times or more greater than the highest balance that person has ever had in the account.

So, I'm wondering if the other parent's really been arrested and arraigned on the misdemeanor, or whether it's only been threatened as a means of getting payment for the bounced check. You may want to make certain that your chickens are fully hatched.

>2)  Could the repeated fender-benders she has help us on
>custody issues (i.e. child isn't safe driving around with
>mom)?

Evidence of habit is admissible to prove present conformity with past behavior. However, you must prove that the habit is automatic, and repeated fender benders doesn't qualify, unless the driver is having them a dozen times a year.

Nevertheless, carelessness is a character trait that goes to fitness to parent, so it's logically relevant to your case, and is therefore admissible. Hard to say how much weight the court would give this sort of thing.

Most of the time, it's all about what the evaluator's report says, and not much else. However, if the parent is actually convicted of a crime, and in this case a crime of moral turpitude (theft by deception is a crime of dishonesty), that could go far to demonstrating the unfitness of the parent as a daily caretaker for the child.

I don't have enough facts to really assess the quality of proof for either issue, but they are possibly useful, depending upon the specific facts that exist at the time of trial.

[topnotchdad]

>You seem unusually well informed.

I will take this as a compliment.  This is an extremely important issue for us because we don't want the child to grow up to be like BM.  Furthermore, we live in a town comparable to Mayberry, so everybody knows everyone else's business.  BM is notorious in town for drug use, promiscuity, etc, so we have a lot of help.  On the other hand, BM's family is high on the totem here (she has stated that the judge is an old family friend), so we have to make sure we have all our ducks in a row before we do this.

Character evidence is
>generally inadmissible to prove present conformity with past
>behavior. However, character is admissible when it is directly
>at issue, as is the case in a custody dispute. Fitness to
>parent is largely a question of character, so under this
>theory, character evidence of the other parent is admissible.

So if BM has previously accused a well-liked sports figure of violating her, and this never went to trial because the county prosecutor and the commonwealth's attorney refused to prosecute b/c all the evidence pointed to BM lying, and in the comm. atty's report, he stated that BM's credibilty is "questionable at best," I think we should make this an issue at custody trial regarding character and fitness to parent.  

BM called the paper and local news stations to "leak" the story, etc, so it does involve the child, in that BM went public with her problems, and now the whole town hates her and this is why she wants to move to begin with.  Neighborhood kids aren't allowed to play w/child because of mom's noteriety.  Not to mention the fact that this was at least the 3rd time she'd accused someone of committing a crime against them and the charges being dismissed or never filed (this includes having BF thrown in jail 7 years ago--charges dismissed).  Our lawyer doesn't seem to think that it's that big of a help for us.


My next questions are:
1)  Should we bring up the false accusations and the prosecutor's statements regarding BM as evidence of her character?

2)  Would it help if we brought in a slew of folks from our town who have told us that she uses drugs, neglects her kids, lies about medical conditions, is crazy, etc.  Or does this kind of stuff annoy judges?  Would it be better to just have people write letters?

3) BM has claimed that she doesn't go to child's school/sports activities because of a major illness she has.  Should we bring that up as making her unfit to parent if a lot of days she "can't even get out of bed" or will a major illness (be it real or imagined) just make the judge show sympathy toward her? (I know you don't read tea leaves, but you have seen a lot more inside a courtroom than I have--just trying to get a feel for whether the poor, sick, helpless damsel in distress card is likely to get sympathy or not).

I appreciate all your advice!  This site is the reason we're so well informed as to our rights (and lack thereof).

[socrateaser]

>My next questions are:
>1)  Should we bring up the false accusations and the
>prosecutor's statements regarding BM as evidence of her
>character?

 If you start down the path of showing what's wrong with the other parent, rather than what's right with you, then you risk the very real likelihood that the court will view you as hostile and vindictive, and consequently that your fitness to parent should be called into question.

This is the sort of thing that can really backfire in a custody battle, because character is directly at issue. Whereas, with an ordinary civil case, the court wouldn't allow any of this evidence in, because it will prejudice the jury's decision about what actually happened on the facts.

So, try to decide whether the evidence you offer directly impacts the child. Knowingly writing a fraudulent check may be a really bad act, but if the parent comes back and says, "I had to write the check because my spouse has secreted away all of our assets and I had no money to feed my child," then suddenly, who's the a-hole?

So, just make certain that keep in mind that it's all about the kid(s), and not about kicking the other parent's ass, because if you don't, I can practically guarantee that the result will be the opposite of what you seek.

>2)  Would it help if we brought in a slew of folks from our
>town who have told us that she uses drugs, neglects her kids,
>lies about medical conditions, is crazy, etc.  Or does this
>kind of stuff annoy judges?  Would it be better to just have
>people write letters?

If you have a disinterested third party witness who can testify, from personal observation, of the other parent's illegal drug use, that would be good. But, as for neglecting kids and other sorts of alleged lies, these statements are likely to be more opinion of the witnesses, than statements of observed fact, and frankly, your attorney won't offer it, because it will annoy the judge who will believe you're wasting time, and your attorney can't control his/her client (i.e., you).

>3) BM has claimed that she doesn't go to child's school/sports
>activities because of a major illness she has.  Should we
>bring that up as making her unfit to parent if a lot of days
>she "can't even get out of bed" or will a major illness (be it
>real or imagined) just make the judge show sympathy toward
>her? (I know you don't read tea leaves, but you have seen a
>lot more inside a courtroom than I have--just trying to get a
>feel for whether the poor, sick, helpless damsel in distress
>card is likely to get sympathy or not).

How do you plan to prove this if the other parent denies it? You want to introduce evidence that is credible and competent. If you just start whining about all of the other parent's bad acts, you will be viewed as hostile and vindictive, and that will offset any benefit derived from your statements re the other parent.

Proof in court is not about what you personally know to be true. It's about what you personally know PLUS what you can prove with independent evidence that is not tainted by an agenda. Usually, it's better to leave on the table, anything that you can support with a physical document, photo, etc., or testimony from someone other than yourself or a close friend or relative. The judge will end up ignoring anything that appears contrived, even if it's not.