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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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My childrens father died several years ago. My sister now

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My children's father died several years ago. My sister now has custody of them. As custodian, she gets the SS death benefit for them ($3000/month), paid directly to her. Now she is suing me for additional child support, arguing that the SS benefit is the father's contribution and that she is still owed money by me.

Is she correct?
Submitted: 8 months ago.
Category: Family Law
Expert:  AlexiaEsq. replied 8 months ago.
Hi, my name is XXXXX XXXXX I thank you for your inquiry. I have been practicing family law for 19+ years and look forward to assisting you. With regard to your post:

My children's father died several years ago. My sister now has custody of them. As custodian, she gets the SS death benefit for them ($3000/month), paid directly to her. Now she is suing me for additional child support, arguing that the SS benefit is the father's contribution and that she is still owed money by me.

Is she correct? Ouch. Yes, it is quite possible she is correct, although it would be the children that are owed support, not really her. The other parent generally does not automatically get off the hook for child support simply because the children have survivor benefits because they lost their father. However, different states DO treat it differently.


As noted by Ohio lawyer Morganstern:
"In a recent case from Sandusky County, Ohio, mother a non-disabled women was ordered to pay child support to father who was disabled and the custodial parent of the parties two children. The calculation of support by the trial court followed the Supreme Court's mandates as mother was not given any credit for the SSDI payments received by father .Despite mother's arguments that the result was unfair, the Court of Appeals was bound to follow the ruling by the Supreme Court. The Court of Appeals noted that the calculation leads to a fair result because if the parties were still married the children would receive the benefit of the payments as well as the benefits from both parents' income." http://www.examiner.com/family-law-6-in-cleveland/stanley-morganstern

 

You may want to try to get the court to consider, at least, the fact that the children DO have income, and how much, so that you are not then responsible for 100% of child support, but a more proportionate amount, possibly as a discretionary move by the court, particularly if you have a relatively low income. It is certainly worth a try as part of your defense.

I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions. Be sure to start future posts with "To Alexia Esq., ONLY" if you want me to specifically answer it.

Sincerely, XXXXX XXXXX

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Customer: replied 8 months ago.

Does it make any difference that my sister has only had the two kids as temporary custody? I just got my son home this week. I am willing and able to bring my daughter home also but she is 13 and doesn't want to leave her school and friends. Keeping my daughter is not a "need" but due to "greed"

Expert:  AlexiaEsq. replied 8 months ago.
Good morning, and thank you for your follow up:

Does it make any difference that my sister has only had the two kids as temporary custody? No, the children are always entitled to support by their legal parents.

I just got my son home this week. Super! If he is with you in your custody now going forward, then she likely can NOT get support for him retroactively prior to the date she filed the motion for same.

I am willing and able to bring my daughter home also but she is 13 and doesn't want to leave her school and friends. I tend to think a 13 year old is usually NOT mature enough to make a decision on what is in her best interest, including her belief that her friends are more important than her parent. But I do understand that you do not want to force her, because sometimes forcing a teenager is going to backfire. But if she is a good kid, I'd consider fighting for her - unless she is very troubled, but doing well at the aunt's, and the mere fight will cause her to run away or something. But not trying to get her may send a message that you care less about her. Just things to consider - I do not know your daughter, obviously. What about you moving to her school district? She gets to keep her school and friends, and there is no more reason for her to resist. Assuming you are a great parent, you should certainly have custody of the kids if the other parent who did have custody passed away. Why did you not have custody when that happened? Was there a problem?

Keeping my daughter is not a "need" but due to "greed" You'd have to prove that the Aunt is then not using the money for the child but for herself, to satisfy her greed, else there is no evidence of greed if she is getting nothing but parenting duties out of it. And, if you have custody of your son, you should very likely
be getting his portion of the SS auxiliary benefit due him, to use on his behalf. If you now have custody of him, show the paperwork to the SSA and ask to be made the appropriate "Payee Representative".
AlexiaEsq., Managing Attorney
Category: Family Law
Satisfied Customers: 11698
Experience: 19+ Years of Legal Practice in Family law matters.
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