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Dave Kennett
Dave Kennett, Lawyer
Category: Family Law
Satisfied Customers: 27689
Experience:  25 years experience as practicing attorney
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My boyfriend is having problems with his ex-wife regarding

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My boyfriend is having problems with his ex-wife regarding the child care & custody schedule for the children. The divorce decree states that he has equal say in all important decisions..the schedule at the time of the divorce was he gets 2 nights a week from 6 to 8 pm, and every other weekend. For the last 6 mos, they have shared time 50/50; he has not pursued a reduction in child support due to the children being with him half the time. The question's I have are:
1) They hired a teenager to babysit the kids during the summer. They agreed to pay $160/wk. After the first week, the teen approached the mother and asked for $225/wk. She agreed without consulting him. Now he wants someone else to watch the kids during his week; his ex won't agree. What are his options?
2) She is threatening to revert to the original time share unless he agrees to the babysitting; what can he do to legally change the custody arrangement?
3) What is the process to pursue reducing child support?

Dear jlp momx3 - The purpose of the original child support and visitation orders are to provide guidelines that must be followed unless the parties agree to alter those rules. As so often happens, the parties gradually change some of the rules for the sake of convenience and then when something goes wrong use those same guidelines as a threat.


That is obviously what is happening in this case. The mother has the right to enforce the rules of visitation according to the court order. Your boyfriend has a right to file a motion for contempt over the decision to pay the babysitter however the court does not want to hear every small dispute over finances. This really is about a few dollars and not a decision over the welfare of the children.


In order to change visitation, custody or support he will have to file a motion with the court to amend any of those terms. Child support is based on the respective incomes of the parties and who has custody. The visitation is then determined based on the amount of time spent in the custody order. All of this is determined by the court based on the best interests of the children.


In order for your boyfriend or the mother to change anything with respect to the court order a motion must be filed in the court. Obviously if they agree to different terms the court could care less as has been the case up until now.


Dave Kennett

Customer: replied 7 years ago.

Although I agree that the babysitting question is over has become an issue of the "best interests" of the children. They are the ones who will be penalized by the mother if she decides to withhold them from seeing their father according to the schedule that they have established. Doesn't that enter into the decision of the court?


As for the child support; at the time of the divorce, she did not work full time nor did he have equal tiime with them. Wouldn't these changes affect the support?

Of course it would enter into the decision. All I'm saying is that it is necessary to file a motion with the court in order to change the original visitation schedule. Until then the mother can enforce that schedule if she so chooses, best interests or not. In fact, one of the bases for the motion would be "changed circumstances" and the charges would be the fact of the course of dealings between the parties.


Until the court renders a decision the old rules will apply.



Customer: replied 7 years ago.
Is filing this motion something that he can do on his own? We do not have a lot of discretionary income. How/where can I find out how this can be done?

He can file on his own. He would have to use the format of the case heading which is on all of the other pleadings such as the divorce decree that shows the court name and parties and case number XXXXX He would title it as a Motion to Amend Visitation and file it with the court. He would send a copy to the mother and the court would then set the matter for a hearing. There are no forms that I know of that are available for this purpose but if he can get a motion filed he will at least be able to get a hearing date and present his case.





Customer: replied 7 years ago.

Ok, do you think that at this point that is his best option? How hard is it for a father to get this kind of change? I have heard many things about mother's being given preferential treatment in the courts...

The preferred treatment theory is mostly a myth. It depends on the individual situation. Obviously with newborns, if the mother is nursing, the mother is given preferential treatment. That's just an example and I assume it is not relevant in this case. If a father has the same ability to care for the child as the mother then my experience has been that there is no preferential treatment.


Your boyfriend will have to use the course of dealing in order to show that it is in the best interests of the children to continue the status quo. Other than trying to work with the mother I know of no other option than going to court.



Customer: replied 7 years ago.
One other question, if you don't mind. What would be your thoughts about getting a guardian ad litem for the children? I have heard both sides regarding these. Is there any other way for the children's wishes to be heard if it comes to that? Their behavior and comments strongly suggest that they actually prefer to be in our home and do anything they can to spend more time with us.

Sometimes the court will appoint a GAL on its own motion if the judge believes the children are of a sufficient age for their wishes to be relevant. Of course if the children are 12 or older Ohio will permit them to testify on their own behalf as to custody. They can't control the situation or choose who to live with but the older they get the more the court will defer to their wishes.



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