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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Family Law
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Experience:  19+ Years of Legal Practice in Family law matters.
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I have a question, my fiancee is divorced from her ex-husband

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I have a question, my fiancee is divorced from her ex-husband with one child. She has been fighting her ex-husband tooth and nail since there first separation back in 2001. The father has been doing everything to get custody of there child to get out of paying child support and to have the mother pay him child support. Thus far he has not been able to prove that the mother or I have not provided a safe enviroment for the child. He had thought reporting abuse to youth services, and youth services would be on his side but the only thing that came out of that was that there was severe coaching or the child on the father's part.

At this time the father had an open motion to be hear for an emergency hearing for removal of the child from the mother's house, file by the lawyer he just fired, the new lawyer he hired didn't have any idea this motion was still open and un-heard by the court, when asked by the court he he said more or less the current custody was fine.

Question 1, if he's claiming abuse how can he not want change in custody?

Currently the father is seeking to pay as little child support as possible or change custody to force the mother to pay him, he has since retired and is claiming SSI benefits he also has several rental properties and other retirement. But in asking for a reduction in child support he has not submitted any finacial affidavits pernaining to the child support to prove he has less income. The mother's side doesn't have an issue with it just satisfy the requirments of the law the same way she has too. But with that he had a reduction revious to this hearing and it was reduces, as well there is an SSI benefit with the child, now the father wants the amount above the ordered child support retuened to him from the benefit. So if the benefit is $1000 and the child support he own was $200 he wants the $800 surplus to be returned to him.
Question 2, is that possible?

Also the child is now 15y/o the father has also been coaching the child in wanting to live with him an has gone to court to get the child to be reconized as a mature minor, thus far the child is still a minor and the father wasn't able to prove his case. But the father is still saying my child has rights, in court the father went on about all the rights his child had. Also in the case the judge spoke to the father directly and asked if I heard your child and the child gives me an answer that is against your position will you honor child answer and stop your custody lawsuits, and the father said no.

Question 3, what rights do minor children have? Do they have the right to free speech? Or the right to choose where they live between mother and father?

This case is in the state of New Hampshire and is quoted in law.
Submitted: 2 years ago.
Category: Family Law
Expert:  AlexiaEsq. replied 2 years ago.
*Due to rules of your state bar or mine, nothing herein is intended as legal advice, only intended as general information to better help yourself.

Hi, with regard to your post



I have a question, my fiancee is divorced from her ex-husband with one child. She has been fighting her ex-husband tooth and nail since there first separation back in 2001. The father has been doing everything to get custody of there child to get out of paying child support and to have the mother pay him child support. Thus far he has not been able to prove that the mother or I have not provided a safe enviroment for the child. He had thought reporting abuse to youth services, and youth services would be on his side but the only thing that came out of that was that there was severe coaching or the child on the father's part.

At this time the father had an open motion to be hear for an emergency hearing for removal of the child from the mother's house, file by the lawyer he just fired, the new lawyer he hired didn't have any idea this motion was still open and un-heard by the court, when asked by the court How was he asked by the court? Was he in court on a different matter, and the court reminded him of this open motion?

 

he he said more or less the current custody was fine.

Question 1, if he's claiming abuse how can he not want change in custody? From your facts, it appears that the ex is not saying current custody is fine, only his new attorney who apparently does not know the case yet and did not even know there was a motion open, said that in error, or at least in contradiction of his client's position, UNLESS the ex has decided to forgo his strategy of changing custody.

Currently the father is seeking to pay as little child support as possible or change custody to force the mother to pay him, he has since retired and is claiming SSI benefits So he is both disable and poor.

 

he also has several rental properties and other retirement. Then he is not on SSI. You must mean he is collecting his social security retirement benefits, being over 62 years old.


But in asking for a reduction in child support he has not submitted any finacial affidavits pernaining to the child support to prove he has less income. The mother's side doesn't have an issue with it just satisfy the requirments of the law the same way she has too. But with that he had a reduction revious to this hearing and it was reduces, as well there is an SSI benefit with the child, SSI doesn't pay dependent benefits, so I, again, presume you meant SSR...

 

now the father wants the amount above the ordered child support retuened to him from the benefit. So if the benefit is $1000 and the child support he own was $200 he wants the $800 surplus to be returned to him. That won't happen. That is not the guidelines. However, he is entitled to credit for the amount of SS going to the child, based on his SS entitlement and the fact that same resulted from his work efforts.


"The New Hampshire Supreme Court ruled In the Matter of Denise Angley-Cook and John W. Cook that a parent with a child support responsibility is entitled to a dollar for dollar credit for any social security dependency benefits the other parent receives that are derived from their benefits.

Therefore, the Supreme Court held that the support should be calculated as follows:

"the amount of the . . . dependency benefits should be included in the income of the noncustodial parent and the guidelines should then be applied to that amount." Rosenberg, 697 N.E.2d at 991; see also Miller, 890 P.2d at 578. The noncustodial parent is then allowed a credit equal to the amount of the dependency benefits, and the net amount of the noncustodial parent's support obligation is the difference between the support amount determined by the court to be correct under the guidelines minus the amount of the credit. See Rosenberg, 697 N.E.2d at 991. An exception exists if the support amount determined by the court to be correct under the guidelines is less than the dependency benefits. See id. at 991 n.7 "In such case, the total support obligation is simply equal to the amount of the . . . dependency benefits, and the noncustodial parent would not owe any additional amount." Id.

Basically, the calculation boils down to everyone's income goes into the pot, and if the child support amount is less then the dependency benefits, there is no child support due from the obligor parent."


http://www.nhfamilylawblog.com/2008/05/articles/child-support/child-support-and-social-security-benefits/

 

Question 2, is that possible? He is not entitled to $800 per month from mom because CS = $200 and SS to child is $1000. Rather, he just won't owe CS, since the child is already getting far more than his owed amount,due to his (the father's ) SS (which dad did work for and pay for).

Also the child is now 15y/o the father has also been coaching the child in wanting to live with him an has gone to court to get the child to be reconized as a mature minor, thus far the child is still a minor and the father wasn't able to prove his case. But the father is still saying my child has rights, in court the father went on about all the rights his child had. Also in the case the judge spoke to the father directly and asked if I heard your child and the child gives me an answer that is against your position will you honor child answer and stop your custody lawsuits, and the father said no.

Question 3, what rights do minor children have? They have the right to provide the Judge their expression of their desired custodial arrangement - if the Judge decides it is appropriate to hear them. Do they have the right to free speech? Yes, but if testifying in court or in chambers is deemed by a judge to not be in the child's best interest, of course the Judge will not allow the child to be hurt in that way. Here, it sounds like the Judge may be willing to hear the child. Typically NH judges are VERY interested in a 15 year old's wants - given the age of the child, nearing adulthood, etc.

 

Or the right to choose where they live between mother and father? No, it is not absolute, but a strong factor to be considered. It still must be "in the child's best interests."

 

Hope this helps!

 

I hope this helps clarify for you.

Because I help people like you here, for a living---this is not a hobby for me---I sincerely XXXXX XXXXX abiding by the honor system with regard to Accepting answers, by Clicking your ACCEPT button now. Feel free to follow up after, if you need clarification. An ACCEPT also assures that I can assist you again. A BONUS is a wonderful way to tell the expert her time and effort are appreciated. I wish you the best in your future.

AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 11709
Experience: 19+ Years of Legal Practice in Family law matters.
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Customer: replied 2 years ago.

In regards XXXXX XXXXX 1, the divorce, custody, and validation of his prenuptual agreement were in process, in 2001, the prenup was found to be invalid, at temporary custody order was enforced to half custody with mother's time being Sunday to Wednesday and father's time being Thursday to Saturday and no scheduled vacation time. Mother was petitioning the court for full custody and the father at first was petitioning full custody. That when he fired his lawyer mid stream with an open emergency motion for full custody in his favor. The motion was brought up by the judge when he asked the father's lawyer if he was going to plead the open motion, and the father's not the his lawyer's response was keep everything the same, half custody was fine. He opened that motion to gain custody of the child from the mother acusing her and I he fiancee of being drunk and physical abuse. Not once did the father bring his child to the hospital to be examined, nor file with the police. all he did was call child services. And through there investigation he was hoping they would be in his favor. But there opinion of the situation and the interview with the child, it was felt that the child was coached by the father. The judge watched the video tape of the two interviews of the child one where he was with the mother and one with the father. Custody eventually went to the mother with every Thursday and everyother weekend with the father, and two non-consecutive weeks of vacation in the summer, and no parenting plan was produced, just the court order and divorce decree, multiple documents to read when figuring out holidays and stuff.

 

With the SSI I meant SSR, his father is 65 and is on Medicare now. So the benefit for the child is coming from his retirement. Now don't get me wrong, if child support calculations say the father pays less in child support, and gets credit for items in the calculation then that needs to be. My issue is the father in my opinion is not meeting the minimum guide lines in proving his case. The father is not disclosing his financial affidavit in the required amount of time prior to any child support hearings, he only produces them minute before the hearing, the affidavits are incomplete, and he will not produce any tax income information when requested, all information which is to prove his case in reducing his child support payment.

 

Currently he has asked the court to render a decision where the mother would pay the excess of the child SSR benefit back to him in the sum currenlty exceeding $5000, all the months so far since collecting the benefit plus pay back of any future payments of SSR.

 

In addition too the my previous questions, just in this month of August, the mother took one week of vacation in the best interest of the child, since the child was in a upward bound college program for 6 weeks of the summer. The father took all the other time between the end of the program and the begining of school except the week of the mother's vacation. The time his father took was a total of 18 days and included two weeks of which we consecutive, the custody order specifically specifies two non-consecutive weeks. Also he waited to the last minute to notify us of the vacation schedule. The notification of vacation was to be by May 15 specified in the order. The mother objected to his vacation time but offered a compromise to the vacation but the father took the time anyways. I confronted him on the matter and he told me his regular custody days do not count as vacation time. Is that possible?

 

Also last year in doing up the vacation time we submited dates from a Saturday to Saturday for vacation and he objected and told the mother she could not take eight days for he vacation a week was seven days, so the vacation time was amended properly to be seven days as to not cause a problem. So what do you think of that? Which is it do regular visitation days count towards vacation time? Can the father hand pick vacation in any manner that is convinent to him? And it a week 7 days?

 

Thanks for your responce.

 

 

 

 

 

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