What to do?

[FLMom]

State of FL. Joint/joint. I am NCP mother.

Need your advice on how to handle something.

CP father and I are currently on a holding pattern with DOR. He requested assistance in receiving a few months of arrears in 2005. We had first DOR hearing two months ago, where I was asked only if I contested DOR's involvement. I said no, and now we're waiting for the hearing date to be set.

In getting my ducks in a row for the hearing, I realized that not only should I have not been paying CS during the last two years, as my overnights far exceeded what the last order stated, but CP should have actually been paying CS to me throughout the last two years.

He is seeking arrears from me of approx. $1200. My calculations show that he really owes me CS of $15,000 plus return of another $5000 that I paid him. Total amount is a little under $20,000.

In the meantime, he and I have talked on the phone. He has no idea that he possibly owes me this money. He even asked me what the hearing was all about! All he knew was that his atty wanted to go after me for contempt, and he was told by his atty that if he didn't want that he should go visit DOR.

He has no clue what can of worms he has opened with DOR. He doesn't know that they're now in our lives for the long run, nor the possible arrears he owes me. DOR gets $ for $ what they receive in CS, and I know that they will then want to go after him in light of the difference of amounts. A $20,000 fish is a lot bigger catch than a $1,200 one.

I suggested in our phone conversation that things were a little more complicated than he thought they were, and suggested that he and I meet for lunch to discuss matters. As of yet he has not taken me up on this offer.

I REALLY want this to go away. I don't want this money. I just want our kids to stay on the schedule that they've been on for the last two years with no CS payments either way.

My fear is that if I tell him that due to his lawyer:
1) Not taking into consideration summers and holidays split, and
2) Not taking into consideration the amount that I pay to cover our children's insurance,
that he will suddenly pull visitation time and go with what the original order said, which is a far cry from what we've been doing.

I am starting to really feel sorry for him. I know that if a ruling goes in my favor it will mean that he will lose his (our kids too) house, and that his wife will leave him. I also know that if I tell him this prior to the hearing that he will run to his lawyer. His lawyer will probably tell him to pull any visitation time that is not in the order. This is what his atty did last time, and the kids ended up only seeing me EOW.

If I suggest mediation he's gonna want to know exactly why. I could tape a conversation if I could get him to meet me, but it won't guarantee that he won't pull visitation again.

I am currently pro se. According to DOR's own website, they're supposed to provide assistance to CP's as well as NCP's, but I've talking to everyone there I can get in touch with, and I've been told that they won't represent both parents at the same time. They suggested the county assistance program but they won't handle CS issues. There is a family law assistance program, but I make over the amount with our household income, even though my individual income is the only one considered in CS calculations.

Question:

Do you have any suggestions on how to try to fix this prior to the DOR hearing without risking losing visitation?

Thanks as always,
FLMom

[socrateaser]

>Question:
>
>Do you have any suggestions on how to try to fix this prior to
>the DOR hearing without risking losing visitation?

No retroactive modification of support may be made prior to the date of the filing of the last motion or order to show cause to modify. So, if you had been exercising more time than the other parent, but there was no motion to modify filed and pending at that time, then, under federal law, the court is prohibited from ordering the other paren't to reimburse you.

You may be able to get some contempt sanctions for failing to exercise custody per the orders, but they wouldn't likely come anywhere close to the amount of arrears that you suggest.

So, now does this change your calculations at all? If not, then go do the hearing and ask for credit on the extra time you had exercising parenting time with the child. If so, then, my dear, you is S. O. L.

[FLMom]

Thanks Soc for the quick reply!

See, that's one thing that's confused me about this. I thought that CS wasn't retroactive, but then DOR said that it was retroactive up to 24 months. On top of that, in the long afternoon that I spent waiting for our case to come up, I saw exactly the opposite of what you're saying. One father was able to prove that he had the child more during a two year period that the mother was filing for and was excused $25,000 supposedly owed.

Hopefully I isn't screwed. :-)

Thanks,
FLMom

[socrateaser]

Federal law is cited below. There is no change. Any state which permits retroactive mod of a child support order violates federal law. I don't know what's going on with that, but I'll continue to look into it.

However, you are correct that FL permits a 24 month retroactive period, based on its own statutes. So, unless the other parent knows FL and Federal law conflict, then I suppose you have an argument. There may be some case law of which I'm unaware, howver, I would think that this would have been fairly big news. Ah well...we're a nation at war, so this sort of thing is probably not all othat important in the scheme of things.

-----

Title 42 U.S.C. 666(a) In order to satisfy section 654 (20)(A) of this title, each State must have in effect laws requiring the use of the following procedures, consistent with this section and with regulations of the Secretary, to increase the effectiveness of the program which the State administers under this part:

(9) Procedures which require that any payment or installment of support under any child support order, whether ordered through the State judicial system or through the expedited processes required by paragraph (2), is (on and after the date it is due)—

(C) not subject to retroactive modification by such State or by any other State; except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice of such petition has been given, either directly or through the appropriate agent, to the obligee or (where the obligee is the petitioner) to the obligor.

[FLMom]

Hmmmm is right. Here's what the FL statutes say:

"10.  For purposes of adjusting any award of child support under this paragraph, "substantial amount of time" means that the noncustodial parent exercises visitation at least 40 percent of the overnights of the year.

(c)  A noncustodial parent's failure to regularly exercise court-ordered or agreed visitation not caused by the custodial parent which resulted in the adjustment of the amount of child support pursuant to subparagraph (a)10. or paragraph (b) shall be deemed a substantial change of circumstances for purposes of modifying the child support award. A modification pursuant to this paragraph shall be retroactive to the date the noncustodial parent first failed to regularly exercise court-ordered or agreed visitation. "

I am thinking that this is what you were referring to in the above post. Nowhere, however, in the statutes do I see anything about the CP failing to exercise their court ordered time---it only mentions the NCP.

I did find this:

"(17)  In an initial determination of child support, whether in a paternity action, dissolution of marriage action, or petition for support during the marriage, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition.

This is not an "initial determination" as we're six years and two orders past the first order. But, from what I saw in court it doesn't have to be the initial determination. In some of the cases I saw while observing in court these people were MANY determinations later with files as thick as phone books.

You did help me with my question. I am just going to hush my mouth until the actual proceedings. If he didn't know why DOR had us both show up in court he surely won't know about the conflict with Federal law. I'll throw the dice there that we can work something out after the hearing, rather than risk losing visitation again.

Nation at war----war between households---both just as ugly as the other. Sigh.

Thanks again,
FLMom