Author Topic: How Child support can be decided, if child custody is not confirmed yet  (Read 28377 times)

stiwary2002

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Hi,

My case is like my wife filled a PFA on Aug01 and the I filled for divorce on Sep17. Both the cases were pulled together with the divorce judge in Johnson County court. Then on Oct25 she took her PFA case back.

My wife's attorney filled a motion for temporary support and a hearing is scheduled for that. Currently kids are living with my wife since Aug01 and I have no access to the kids. Although I am able to see them in school and games after October25.

My questions are:
1. How a Judge going to decide about Child Support when the child custody is not decided yet.
2. What is the probability a Judge can give 50-50 custody after the game my wife played of PFA?

Any answer in this regard is highly appreciated. My motion is scheduled for next week.

Thanks,


Guru

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #1 on: November 16, 2012, 02:34:31 PM »
1.)  the judge can and will decide child support regardless of custody/parenting time.  He/she simply "assumes" that reasonable parenting time will occur.  Reasonable parenting time is usually defined as one night/week and every other weekend or something like that.  Of course once parenting time is decided or changes, the child support can change.  You can file a motion to change the temporary order at any time.  If you don't like it and you don't want to wait for other hearing, you can file to change the temporary order and it will go in front of a judge.  Of course you better have a good reason and be able to argue your point very well.

2.) 50/50 or "shared residency" will depend on a number of factors.  One of which is what court you are in and what that judge thinks about shared residency.  You can probably just go watch a few cases and see how that might go.  Usually they are either for it or against it.  It will depend on the location of your residence relative to mother's.  If its too far, shared residency isn't reasonable.

PFAs and PFSs are a card that is played by one or both parents in a very high percentage of cases.  These are usually set to begin as high-conflict cases.  A parent does this to paint a bad picture of the other parent.  BUT, it can also backfire.  From what I've heard, judges and case managers will take a PFA into consideration, but really don't look at it too much.

The reason PFAs don't hold a whole lot of weight is because it doesn't take anything to get one.  All you have to do is go to the court, fill out a piece of paper with allegations (no proof required), then take it to the judge and ask him to sign it.  Then you file it and have it served on the other party.  So you could have been a model father, but your wife wanted to have the upper hand, so she filed a PFA, filed first with the court so she was able to set the temporary order, and took the kids.



stiwary2002

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #2 on: November 16, 2012, 02:47:19 PM »
Thanks Guru for your kind reply. My case is in Johnson County court DIV # 17. Judge is K Ryan.
My wife has got the attorney from NGO called safehome and she is playing all nasty games against me.
So it looks like I need to file a counter claim for Temporary support with my parenting Plan (i.e. 50-50) shared custody.
I also took the apartment in the same school district so residence does not become an issue.

Also my history is to take the kids school, doctors, all their games, vacation every year. She never participated into these in past. Even now also my kids are being picked up by coach or some parent. she does not have car nor she drives it when i was there with her.

So i hope these things should be considered by the judge.
I will appreciate if you can guide me the best thing to do at this point in time.

Thanks a lot in advance.

Guru

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #3 on: November 16, 2012, 09:18:57 PM »
I think you may want to review this post:
http://kschildsupportforum.com/general-discussions/johnson-county-family-law-guidelines/

You should read these guidelines thoroughly.  I think Johnson and Shawnee counties are some of the worst places in the state of KS to order shared residency.  Everyone I've talked to from those counties describes a less than ideal court experience.  It may have something to do with the very high concentration of attorneys and judges in those areas.

You are most likely in for a very bumpy ride for a while.  You may not want to get your hopes up that the court will simply grant you any kind of custody just because you tell them so.  Moms usually get the benefit of the doubt and do have custody most of the time.  I'm not sure where you live relative to your ex, but if you don't live very close, then 50/50 custody may not be a worth-while fight.  Instead you may want to consider having primary residency instead.  You can always ask for more, then concede to take less later on.  This approach is taken by a number of attorneys.

Here's some points you might consider:
1.) you live in the school district, mom doesn't. Kids will spend an unnecessarily extended amount of time in the car every day and will be required to get out of bed earlier.  The kids also can't ride the bus.
2.) you have a car and have been the one taking the kids to obligations for years and you know their routine.  You'll have to describe exactly why mom didn't do this.  Maybe mom worked late, or maybe mom was busy watching tv, or maybe mom doesn't have a driver's license.  I don't know the situation.
3.) the children have a stronger bond with you and have been taken out of their normal routines now and they need to be back to normal.

You are fighting that temporary order.  The reason divorced parents all try to get the first punch and serve papers on their ex is because they have the upper hand in court.  Once that temporary order is issued, its usually set until the resolution of the trial.  You can motion to change the temporary order, but you'll need to show good cause.  The court will be reluctant to change custody without hearing all the evidence.  So, the longer the kids stay with mom, the more that temporary order becomes the new status quo.  This works against you every time.  The kids will learn to get along fine without you, they will loose the bond with you, and mom's new boyfriend then comes into the picture.

These are simply my opinions so take them for what they're worth.  I've never been accused of sugar coating anything, so I'm just calling it like I see it.  I think you're going to need a very experienced (40+) female attorney.  You'll probably need to start building a case with evidence and be prepared for a very expensive trial.

There is an alternative in KS called limited case management, if you choose to do that.
« Last Edit: November 17, 2012, 02:00:04 PM by Guru »

KTM

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #4 on: November 18, 2012, 10:55:28 PM »
Guru,

1. There may be some confusion regarding the definition of legal terms. Custody is not the same as Parenting time. Almost ALL cases result in joint custody rights being established. Parenting time which is linked to Child Support is variable.

2. Safehome is a Domestic Violence shelter in Johnson County and they do not play games. stiwary2002 stated that Mom's attorney is employed by Safehome and they carefully select their cases as their service is provided for FREE. stiwary2002 may not recognize his behavior as being abusive. It may well be a situation where intervention and education for Domestic Abuse will be helpful to the children involved. What Dad has described here in terms of limited involvement by the mother might be interpreted as evidence of Domestic Abuse in the sense of an extremely controlling party.

3. The PFA allows for some distance to be established between the filer and the recipient in order to establish a zone of safety and in hope of decreasing the emotional volitility between the parties.

4. In your reply you are advising a potentially abusive person to take parenting time away from the other parent and establish why they are the better parent. That is absolutely the opposite of what the Courts will be wanting to see and is an abusive Legal position.

5. stiwary2002 is not fighting a temporary order. He sated that it was "taken back" on October 25th.

Be careful what you advise and insense other people to do.

stiwary2002

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #5 on: November 19, 2012, 12:23:20 PM »
Thanks Guru for being so nice and giving your best advise to me. I believe that
sometimes criticism also helps you to take the right decision. So I like the
comment of KTM as well.

I have meet with around8--10 peoples so far and they also have the PFA in their
cases. Wife takes it back just before the day of hearing. So to me it looks like
a trend of women while going for divorce. Even couple of attorneys also gave
some comment like this is first step of Divorcing process of cheaper peoples. So even now i am not surprised.

When it comes to NGO, I believe that any woman can reach to them with some sort
of issues and then it becomes part of their job to fight the case for those
women. they do not have any quality process where they will filter the case
based on some truth or understanding. These NGOs need money from the government
and they can get it based upon how many cases they are fighting or fought in the
past. Definitely their attorney is neither a Judge nor a person who will justify the cases. Their job is to fight the cases so that her job can also run smoothly.

Anyway in my case I took a Jr. attorney and he is going to file two motions one for change in temporary support and another for 50--50 custody.

Let me see how judge takes it decide on nov27. I will keep you updated. All the suggestions are most welcome till then.


KTM

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #6 on: November 19, 2012, 01:47:51 PM »
A PFA does not need to be filed for there to be a Legal advantage in a Divorce or Custody case.

Simply filing for Divorce first in the state of Kansas gives the filing party first right to stay in the marital residence and file a temporary parenting plan. That is the legal advantage. As I understand it, the respondent to a Divorce filing can be asked to leave the marital residence and this wold be enforced by authorities.

stiwary2002 - What you believe about the process Safehome uses to select the cases they will represent in court is false. Your statements about how the process works, who funds the attorney and how the attorney's effectiveness is measured are false. Safehome is not set up to represent all clients in Divorce proceedings or for any other legal matter. Safehome only represents women and children who are victims of Domestic Abuse and help them to start a new life free from the abuser. Understand that the Judge assigned to your case will know this too.

stiwary2002

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #7 on: November 19, 2012, 03:06:30 PM »
I just expressed my understanding based upon my experience.
You are a expert and senior member here, your views will be definitely based upon the experience you gained from different peoples.
I think there is no end to it that I can say my version of story and my wife can say her version of story.
The good thing is that this is going to end now soon and we both will have a good life here on.

I am not sure if this will make any impact on Judge and his decision if the case is being argued by a NGO attorney or a regular attorney.
Let me see how it goes and will come back on this.

Guru

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #8 on: November 19, 2012, 08:50:43 PM »
@stiwary, let me just ask this question.  Before the divorce was there ever abuse (verbal or physical) in the home which required the police to visit your residence?  Before the divorce had either your ex or yourself ever filed for a PFA or PFS for any kind of abuse?

@KTM, I'm fully aware of the difference custody and parenting time.  According to Chapter 38 of KSA, custody can refer to physical or legal.  In this case I have referred to physical custody, which is equivalent to parenting time or visitation.  I will agree with you that unless the court determines otherwise, most parents have joint legal custody which gives them the right to any record and to equally make any decision for their child.

PFAs are many times used as a tactic to gain the upper hand, and it does work.  Filing first and becoming the petitioner, is an advantage too.  This case will be an uphill battle.  I don't know how many times I've seen it.

My advice would be to not put everything in the hands of your attorney.  Many tell you one thing until they get your money, then you get the truth about what is really going to happen.  They also will not play hardball with another attorney because they all have to go to lunch later.  Keep a very close eye on your attorney, keep track of their hours and how long your phone calls are with them, talk to other attorneys in the meantime to get more opinions.  Remember that your attorney works for you, so if you don't like it, fire them.  There are plenty of them out there.  They are all taught in school to gain a strong rapport with their client, so they will act like your best friend.

stiwary2002

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #9 on: November 19, 2012, 09:11:18 PM »
Before the divorce was there ever abuse (verbal or physical) in the home which required the police to visit your residence? -- No, She called the police four times in last 10 years and police never found anything like that and I was never arrested. She used to call police on small issues like one time she called the police because I gave more milk (bigger glass) to the kids and then she also admitted to the police officer that she was not sure to call police on this issue.

Before the divorce had either your ex or yourself ever filed for a PFA or PFS for any kind of abuse? -- This was the first time when she went for PFA and after that I filled for divorce.

Now PFA is not there after both the party agreed to it.

Both sides attorneys are ready for Joint Legal Custody.

When it comes to physical custody, her attorney is talking about Supervised Visitation and my attorney is talking 50-50.

I will not be surprised if her side attorney comes to some agreement one day before hearing. Because this is the same thing happened in PFA also.

My understanding based on discussion with other attorney says that Judge may go for One night per week and every alternate week ends for me. I am not sure.



Guru

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #10 on: November 19, 2012, 09:21:03 PM »
That's kind of what I thought.  No evidence of abuse at all until the divorce.  I'd say that's a pretty typical play.  If you have any police reports confirming what you stated, that could help snuff that fire real quick.  Of course, I don't think you have anything to worry about on the PFA.  Nearly every time, the PFA gets rolled right into the custody papers :)  Amazing how those two things can get combined.  No, I don't mean divorce papers, I mean even custody papers.

I wouldn't be surprised if some kind of agreement was offered, but I agree that both the judge and the attorneys all want you to agree to some lesser parenting time right now so everyone can just move on.  You'll be back though.  Keep in mind that attorneys don't talk much about Limited Case management because they don't get paid by taking that road.  If you can calmly and coherently discuss your case with someone, this option may work okay for you.  I don't recommend case management, but LCM seems to be a good option.  I've seen better success with parties who have someone in the social sciences background rather than an attorney.  You can call your court and ask about Alternative Dispute Resolution options and they can mail you info.  Then you can throw that wrench into the mix if the offer isn't good.

It is extremely likely that the judge will order your case to mediation as a first step.  By curbing that and offering to do LCM instead, it makes you look reasonable and willing to work out the issues.  Always be "reasonable."

KTM

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #11 on: November 20, 2012, 09:48:33 AM »
Guru,

Your dismissive attitude with regard to Domestic Abuse is an example of exactly what allows it to continue to be acceptable in our society.

Don't mistake criminal conviction or arrest as the only evidence of Domestic Abuse. I suggest you get some education. Safehome provides Free education on the issue and it appear from your statements that you are deeply involved in he Court process. So, it will be readily available to you.

The Legal system in Johnson County has been structured to resolve matters of Domestic Abuse before they get to the point of fatal violence. Domestic Abuse does not start with physical abuse and violence.

As such, Safehome provides support for a woman & children to separate themselves from a harmful situation before and immediately after it becomes physically dangerous.

The way the legal system has been operating allows the man to be free of criminal convictions through plea bargaining which reduces Court Costs, Jail Expenses and keeps the man working to provide Child Support.

I believe the purpose of this process is to restore equality in the relationship and keep it from escalating to violence while protecting the parties from life altering criminal convictions.

Guru

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #12 on: November 20, 2012, 01:07:35 PM »
I'm not saying I condone abuse (either way) and that we shouldn't do something about it.  I'm saying there's two sides to every story, and a percentage of divorce cases involve a vindictive mom who is trying to gain the upper hand.  There are plenty of cases of well documented history of abuse, but this doesn't appear to be one of them.

So in a trial, if you don't have pictures, criminal conviction, arrest, police reports, or any other PFA filings, what other evidence is there other than mom's testimony and mom's friend/family testimony?  There's no physical proof, there's he said/she said.

The mere fact that Mom immediately agrees to dismiss the PFA upon a custody/child support arrangement immediately tells me that mom may have played the PFA card.  If abuse was such a huge issue, why did she immediately agree to dismiss it?  Why not file criminal charges?

Was I wrong in stating that there is absolutely no evidence required to file a PFA or PFS?  As I recall, you simply walk in, fill out a piece of paper and have it signed by a judge.  The judge nearly always signs it, unless you're a man.

So, does the Safehome shelter do an internal investigation of the evidence?  Do they interview Dad to ensure there is actually abuse occurring or do they take mom's word for it?  Do they also support men who are abused?  According to their website, they are a free women and children shelter only: http://www.safehome-ks.org/portfolio/shelter/  Appears they offer free shelter and free legal assistance to women, but not men.

KTM

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #13 on: November 20, 2012, 01:50:11 PM »
Guru,

Interpret statements here as you may. But, FYI.

The PFA is a Temporary Order which requires a hearing within a set number of days. It would be either negotiated and dropped (which is preferred by the Courts) or set for hearing. Kansas statutes allow the Courts, DA & others to decide how to procede without the parties involvement. Once Temporary Orders are established and a Parenting Plan is put into place the PFA will be dropped as a part of the legal process. Contact restrictions will become part of the Temporary Orders so the PFA is superceded by those Orders and falls away. This will occur in a majority of the cases and has nothing to do with the validity or lack of validity of the PFA.

Once a Motion for Divorce is legally filed the matters of PFA, Temporary Orders and Divorce proceedings are automatically folded together.

The Criminal Courts try matters of abuse through a Magistrate Judge. This is what the DA try's to avoid for a variety of reasons. Criminal charges are never filed by the victim. They are filed by the DA's office if the case is serious enough. All others are plead out. Especially first time offenders.

Statistics document that the majority of abuse leading to death and harm to children is perpetrated by men onto women. This, among other societal reasons is why Safehome focuses on helping women and children. The model currently in place is one of the reasons why Johnson County has had a significantly reduced and sustained low homicide rate. Seek out the education on Domestic Abuse that I suggested and you will have ALL of your questions answered.

stiwary2002

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Re: How Child support can be decided, if child custody is not confirmed yet
« Reply #14 on: November 28, 2012, 08:17:07 PM »
Well friends,
Nothing happened that day. Her attorney offered couple of hours every evening with the kids and no overnight stay. I refused to that and said that I want either 50-50 or face the judge.

She said let us face the judge and after 15 minutes her attorney said we will take continuance because her (my wife's) translator is not here. This is the second time they have not brought her translator. My wife has worked in past, able to talk to Police, School teacher, principal, friends and her Attorney but when it comes to the court hearing they play the game of translator.

So now the court has given another date and also ordered for mediation.

This is frustrating....nasty game.....a package of PFA with divorce.....