Enforcement of decrees

Among the Ask a Divorce Lawyer questions answered today by Cordell & Cordell attorneys:

  • What force will the Marriage Settlement Agreement have if we are interpreting it differently?
  • Can you “undo” an adoption?
  • How do prior criminal records play into custody decisions?
  • What rights do I have if my name is not on the birth certificate?

 

 

Question:

My ex and I mediated a settlement, in which I am supposed to have the kids for 4 out of the 6 weeks they’re home from school this summer. The settlement states that we’re supposed to agree upon the exact configuration of days, but so far her proposals are unacceptable to me because they have me shuttling the kids back to her every weekend. She’s threatening to keep the kids from me if I don’t agree to her schedule. Do I still have recourse to the courts? What force will the Marriage Settlement Agreement have if we are interpreting it differently?

Answer:

Each state has different laws governing custody and placement and enforcement of the custody and placement orders.  I do not practice in your state so I can only speak to general practice.  Therefore, you need to contact a domestic litigation attorney licensed in California immediately—you want to make sure you have plenty of time to address this issue well before the summer break.

Your situation demonstrates how important it is to be as detailed as possible when drafting a Marital Settlement Agreement.  Leaving decisions open for “agreement between the parties” is setting you both up for expensive post-judgment litigation.  Depending on the language used, you each may have a valid interpretation of the agreement.  Just because you can’t come to an agreement on the schedule however, does not mean that she is able to withhold placement altogether.  More likely than not, there is no provision which allows her to withhold placement if there is disagreement.  In addition to violating the Court Order, she may even be violating a criminal statute if she interferes with your placement rights.

You need to re-read your Marital Settlement Agreement to look for any provisions which discuss how you both are to attempt dispute resolution.  There may be a provision which requires you to attend mediation before either of you can file a motion with the Court.  In addition to interpreting your agreement, your attorney will also be able to tell you if there is a statute or local rule which requires you to attempt alternative dispute resolutions when there is a custody and placement disagreement.  If you do not have these requirements and you think that they would be a waste of time, you may be able to file a motion with the Court to resolve the dispute.  In many states, you can file a motion with the Court to enforce the placement order and ask the Court to provide a schedule since the two of you cannot come to an agreement.  Again, your attorney will be able to tell you the procedure for enforcing placement provisions in California.

 

 

Erica Christian is an Associate Attorney in the Milwaukee, Wisconsin, office of Cordell & Cordell, P.C. She is licensed to practice law in the state of Wisconsin. She is a member of the Wisconsin Bar Association, the Family Law Section and the Children’s Law Section.

 

 

Question:

I got a divorce in Michigan in 2008. During my marriage, I adopted my now ex wife’s two kids from their biological father. Now one of my stepsons who I adopted says he wants his biological father to re-adopt him. Is this possible and what do I need to do to make it happen? I live in North Carolina, but my ex wife and the kids live in Michigan.

Answer:

It sounds like your son wants to “undo” your adoption. In Michigan, it is possible under certain circumstances. The adoption laws are interspersed  throughout the Juvenile Code, the Adoption Code, the Probate Code and the Estates and Protected Individuals Code, but, combined, they provide these three options:

(1)            Rescission or Revocation. If the natural parent agreed to the adoption and, therefore, executed a release of parental rights or a release and consent for adoption form, the parent has 21 days from the date of entry of the order terminating parental rights to rescind or revoke the agreement. This is not an automatic right, however. Usually, the parent must show he or she entered the agreement involuntarily. Otherwise, the options to challenge the adoption on appeal are extremely limited. You should contact an adoption attorney in Michigan for more information.

(2)            Adult Adoptee’s Petition. If the adoptee is now an adult (at least age 18), he or she can file a petition with the county court that entered the order of adoption to rescind the adoption. The natural parent whose rights the court terminated must join in the petition. The rescission order restores the natural parent’s and the child’s rights under the law and extinguishes the stepparent’s and the child’s rights. See MCL 710.661.

(3)            New Adoption. A stepparent adoption severs the natural parent-child relationship under the law and substitutes it with the stepparent-child relationship. See, e.g., Bikos v Nobliski, 88 Mich App 157; 276 NW2d 541 (1979). The stepparent assumes the role of the legal parent, with all of the rights and duties associated therewith. That means, the stepparent must consent to termination of his or her rights to the child and release for adoption. The proper venue for an adoption under Michigan law is the family division of the circuit court of the county in which the petitioner resides or where the adoptee is found or, if both reside outside the state, where the parent’s parental rights were or will be terminated. See MCL 720.24. If the parent is ready to release the child directly to another person (e.g., you are ready and willing to release your son to his natural father), try Michigan’s direct placement adoption. These are less costly and more efficient than agency-placement adoptions or protracted cases to terminate parental rights. See MCL 724.51.

Caveat: What will happen to your ex-wife’s rights? If your ex-wife has not remarried the natural father, will not consent to termination of her parental rights or has not had her rights involuntarily terminated, then the natural father cannot “re-adopt” your son under the third option. This is because, in Michigan, adoptions are only allowed for single adoptive parents, married adoptive parents filing together and stepparent adoptive parents. As part of the adoption, the non-adoptive natural parent’s rights are terminated unless that parent is also married to the stepparent adoptive parent.

Adoption forms are available in the county courthouse and online at www.courts.michigan.gov. However, you must have an adoption attorney’s help because the adoption procedures are tricky, and there are several forms to complete. Miss a step, and the adoption is liable for attack on appeal.

Keep in mind that I cannot give you detailed advice about your case without a thorough meeting with you. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney immediately for additional information and legal representation. Cordell & Cordell, P.C. does practice law in Michigan, and we would be happy to assist you.

 

Question:

My brother’s wife has asked him for a divorce. She has retained an attorney and wants him to move out of the house while they try and sell it. He doesn’t want to and wants to stay with his three children. What should he do?

Answer:

The most important advice for your brother is he should meet with an attorney in his area immediately for assistance. If he cannot afford an attorney, he should contact the local bar association or the New York State Bar to locate low- or no- cost attorneys. He may qualify for them as a benefit of employment (e.g., the GM Legal Services Plan), as a member in a professional or community organization or based on his income. I do not advise this because I am an attorney and have attorneys’ interest in mind – as an attorney, I have clients’ interests in mind, and I have seen the bad things that occur when divorcing spouses go unrepresented. Among these are the following, and here is what your brother should avoid:

 

1. Failure to Respond. Either spouse may file for divorce and, depending on the circumstances, may obtain temporary asset restraining orders, spousal and child support orders, custody and parenting time orders and personal protection orders. These are ex parte (“without the other party”) and based only at that spouse’s version of the facts. If your brother does not answer the divorce petition or does not challenge the temporary orders, he could be in default and stuck with them. This means, essentially, his spouse can have the divorce “her way,” custody and support and exclusive use of the home and all. There are short timeframes in which to respond (in some states as short as 7 days), so he must act quickly. The same is true for any court hearing. Your brother needs to attend every hearing and promptly object if he is unsatisfied with the results. He should ask the court clerk for motion for reconsideration or appeal forms, whichever the court uses. Most of all, he should have an attorney attend with him to properly advocate and protect his interests. Penny pinching here can cost a lot in the future.

2. Moving Out. Although the decision whether to move and the move’s effects on the case depend on the unique facts and circumstances of the case, usually the leaving party is less likely to receive primary physical custody of any child because courts tend to render decisions that maintain the child’s established custodial environment. An established custodial environment is a physical and a psychological environment where the child naturally looks for care, comfort, guidance and life’s necessities. This is most often the home where the child resided until the separation. (Of course, other factors, such as abuse in the home, could change the analysis). Moreover, the remaining party is more likely to receive exclusive possession of the home until the court issues its final divorce decree.

3. Paying Child Support Directly. Most states require payors to pay support through the state, along with a processing fee. Some parents pay their children’s custodial parent directly to avoid paying the fee. That is a mistake. Unless and until the order states the payor can pay the other parent directly, the payor must pay child support through the state. In most states, the money paid directly to the other parent will be treated as a “gift,” not child support. Since the appropriate entity (the state) did not receive the money, the payor would still owe child support and could even end up paying the full amount twice.

4. Getting Lost in Lawyer Lingo. Lawyers are known, unfortunately, for sneaky wording and blocks of font-6 legal print. I guesstimate that in half of my divorces, the other side (or my client who is now upset and has to retain an attorney) decides to let one attorney do all the drafting, thinking they will understand what the lawyer writes. Big mistake. Subtle differences make a huge difference. For example, “joint” physical custody does not always mean “equal time” physical custody. Always have a lawyer review any documents before signing.

 

Keep in mind that I am a Michigan attorney and cannot give you or your brother detailed advice about the laws in your state, New York. You and your brother should not rely on this answer as establishing an attorney-client relationship, and you and your brother should contact an attorney immediately for additional information and legal representation. Thank you for submitting a question to Cordell & Cordell, P.C.

 

 

Jennifer M. Paine is an Associate Attorney in the Detroit, Michigan office of Cordell & Cordell P.C. She is licensed to practice in Michigan, and has been admitted pro hac vice in Illinois, Ohio, and the United States Court of Federal Claims. Ms. Paine received her BA in English and Mathematics from Albion College and graduated Summa Cum Laude. She received her Juris Doctorate from MSU College of Law and graduated Summa Cum Laude.

 

 

Question:

My son pleaded guilty to a having child porn on his computer over 5 years ago while he was in the Navy. He was discharged and he and his wife have lived together since then with her son from a previous relationship and their own son. She now wants a divorce as quickly as possible and my son is afraid if he asks for joint physical and legal custody that a judge would not let him have this arrangement because of the child porn conviction on his record. Would this be the case?

They live in Missouri and would be getting a divorce there. Also even though he has raised her son as his own, he has never adopted the boy, so does he have to pay child support for that child?

Answer:

In determining what type of custody situation the Court will award, the Judge must determine what is in the best interest of the child. There are various factors the Judge will consider in making this determination, including, but not limited to, the needs of the child for a frequent, continuing and meaningful relationship with both parents; the ability and willingness of parents to actively perform their functions as mother and father for the needs of the child; the interaction and interrelationship of the child with parents, siblings, and any other person who may significantly affect the child’s best interests; and the mental and physical health of all individuals involved, including any history of abuse of any individuals involved.

Also the court will not award custody or unsupervised visitation to a parent who has pled guilty to one of a number of Missouri statutes involving sexual offenses or offenses against the family. Also it is in the Court’s discretion to award custody or visitation to an individual who has pled guilt to a non-Missouri statute which is essentially the same as one of the previously mentioned Missouri statutes. I do not know all the facts of your son’s case and therefore I can only give you general information in this answer.

In regards to child support, the court will look at what is in the best interest of the child. If you son has held himself out to be the child’s father and the child recognizes him as his father, the court will likely award child support. Again, however, I do not know all the facts of your son’s case and therefore can only give you general information in this answer.

You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation, which is often the case in a divorce and custody case. Cordell and Cordell has numerous attorneys and offices in Missouri who would be glad to discuss your son’s case further if he so chooses.

 

Question:

After 10 years of divorce, my ex wife informs me she is deviating from the divorce decree and claiming our son on her taxes during my year because I have not paid 50% of the medical bills. She has never discussed medical decisions with me or requested I pay for these bills before now. Can she do this?

Answer:

I must preface my answer by stating that I am not licensed in the state of Indiana and an attorney in your jurisdiction will be able to answer your question more specifically.

In general, parties cannot deviate from the divorce decree absent a motion to modify. I do not know the specific facts of your case or divorce decree so I cannot answer in more detail.

Keep in mind that I am a Missouri attorney and cannot give you detailed advice about the laws in Indiana. I can only give you general information in this answer. You should not rely on this answer as establishing an attorney-client relationship, and you should contact an attorney in your area immediately if you need additional information or legal representation. Cordell & Cordell has attorneys in Indiana who would be glad to discuss your case further if you so choose.

 

William Halaz, III is a Staff Attorney in the Arnold, Missouri office of Cordell & Cordell, P.C. Mr. Halaz is licensed to practice in the state of Missouri. Mr. Halaz received his bachelor’s degree in Political Science from Southeast Missouri State University. Then continuing his education, received his Juris Doctor from St. Louis University’s School of Law. 

 

 

Question:

I have a friend that has been caring for his 6-month-old son since birth. My friend’s name is not on the birth certificate, but he does have a DNA test showing he is the dad. In a few days he plans to serve her with custody papers. I’m afraid he is setting him self up to have his kid taken from him.

What would the right steps be for him to get custody, and minimize the risk of the mom showing up and taking the boy? What rights does my friend have if his name is not on the birth certificate?

Answer:

I must inform you that I am not licensed to practice in Missouri. However, Cordell & Cordell has many attorneys licensed and located in Missouri who would be happy to help you. Because each state has different laws governing establishment of paternity, it is important that you contact a domestic litigation attorney licensed in Missouri prior to taking any action.

Your friend finds himself in a difficult situation.  Since your friend was not married at the time of birth based on the facts you have given me, he will not be presumed to be the father.  In order to gain custody he must be recognized as the father of this child.

He has taken a big step in this process by having the DNA test results.  Next, he should petition the court to establish paternity.  In most jurisdictions the juvenile court is the proper place for filing such a petition, but you should verify with the courts of your jurisdiction as to the proper place to file.  Missouri follows what we attorneys call Rules of Civil Procedure.  These Rules will require your friend to serve and notify mom of any hearing dates concerning her child.

Your friend is doing the right thing by going through the legal process.  It will be the only way that he can insure that he will be recognized as the father and gain custody.  The DNA tests and his caring for the child for the last six months offer very good evidence that he should remain in custody of the child until the court makes a final ruling on custody.  However, you never know what a judge might order.  In this case your friend is doing the only thing that he can do by going to court.  If he does not then he will have no legal right to continue caring for this child.

 

Steven “Lee” Akins, Jr. is a Staff Attorney in the Memphis, Tennessee office of Cordell & Cordell, P.C. Mr. Akins practices exclusively in the area of domestic relations. He received his BBA in Finance from Southern Methodist University and continued his education to receive his Juris Doctor from Texas Wesleyan University.

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