Armed Forces - Child support/Custody question

[jjixsaw]

What is the name of your state? = Missouri

Question:

(FYI: I am looking for a lawyer in the MO, area)

I'm curently involved in a pretty bad battle for custody. I would really like some help, any help or suggestion would be welcome. I am currently looking for an affordable attorney, but I am not afraid to look for information myself so I know what I'm facing.

The situation is that I am divorced as of December 2004. I have joint custody of my child. I mistakenly signed the divorce document without reading the fine details.... I almost made a huge mistage by signing it, but thank God its not as bad as it can get. I looked over the divorce documents and one of the clauses in the divorce document states that neither party can be in the U.S. Armed forces. I know, and can prove for a fact that my ex-husband was (and still is) in the army at the time of the divorce. Since he did not include the fact that he IS currently and was at the time the divorce papers went through, in the army. I want to know if I can possibly do the following:

1) Since I have joint custody (with him having primary custody currently), is there any possible way that I might be able to get full custody of my child? I was thinking about the fact that if he does get deployed, how could "joint custody" work?... Is there any possible way I can use the fact that he is in the army and "lied" about it in the divorce documents, against him? I'm wanting to get full custody of the child, and since he leaves for months at a time for army training (out of state), I need to know if I have any chance whatsoever to be able to get full custody since there is no way to tell when or if he will get possibly deployed.

2) The current divorce decree states that he is not to pay any child support. I want to know if there is any way to be able to get any modificiation on this?

I don't want to sounds like I'm money hungry, but I work for almost minimum wage which is hardly enough to be able to support myself, let alone my child. I am mostly worried about my child, not the money, but it would definitely help out if I could get child support from my ex-husband. Since he is in the military, can I possibly use the fact that he is actually in the military (even though the divorce document stated that he is not supposed to be in the militiary) to have the judge modify the child-support so that I can start receiving it?

sincerely,
Mother w/o a clue

 

[Whyte Noise]

Please post the EXACT wording of this clause in your decree. I think you may have misread it.

Generally, it will say things like:

"Neither party is currently a member in the Armed Forces; or
"The wife is not pregnant"

Statements of fact that you have to attest to. I think this may be what you are alluding to.

What date did he sign those papers? What date did he enter the Armed Forces?

 

[rmet4nzkx]

It sounds like if in fact you are reading it correctly, that it was a typo, with all parties misreading or not noticing it. That being that case, it would not be enough for him to lose primary custody, especially since you both knew he was in the military, there was no fraud.

Aparently you know little re the military and how child custody is handled during deployment, since you don't have primary custody I am wondering why he has custody and lastly, seldom is the NCP awarded child support? Do you know what his family plan says in the case of deployment?

If you can asnwer these questions there might be other advice.

 

[jjixsaw]

reply to both answers...

Thank you both for at least giving me some sort of advice to go on.

IN REPLY TO rmet4nzkx:

As far as the divorce document stating that neither party is to be in the Armed Forces, you're correct - that would not indeed be "fraud". However, knowing that we both indeed knew that he was and is currently in the military - I have nothing to do with him being in the army. However isnt it is his responsibility to have correctly notified the courts at the time of the divorce that he was in fact in the military? Because if he had not and neither party noticed the clause until after the divorce papers went through, is that something that could potentially give me the "upper hand" or possibly something that I could use against him to at least get primary custody, or just anything whatsoever?...

And you are correct, I really know nothing whatsoever about military law nor how custody is handled during deployment. You are also correct, we do not have full custody, it is setup currently as "joint custody" - however in the divorce decree it does state that the child's primary address is to be with the father. I am assuming that that would make him the "primary" custodial parent...??? I dont know what a "family plan" is that you're reffering to, but I assume that it means that in case he gets deployed he would be able to give our son to someone in his direct family that can take care of our son while he is deployed? If I am correct on that, than the answer is no - I do not have any knowledge of a family plan set up.

Is there any way, shape or form that the custody can be modified where I am the primary custodial parent? (Once again assuming that by primary custody parent, under a joint custody order, you mean the parent whom the child has the primary address with). And why could the NCP (if in this case I am the NCP) very seldomly be awarded child support? Is there anything specific I might be able to do to have the upper hand on this matter if I am to take him to court over custody/child support modification. Don't courts usually tend to lean towards the mother in these cases?


IN REPLY TO MissouriGal:

The exact wording of the clause in the decree reads as below:

"that neither Petitioner nor Respondent are members of the Armed Forces of the United States;"

The date he signed the papers was December 6th, 2004 (about 4-5 months ago).

He entered the US Armed Forces around August of 1999.


---Thank you both for your replies, any information is very appreciated in this matter---

P.S. - I am currently looking for a lawyer in or at least around the Springfield, MO area that could possibly help w/ this. However most of the lawyers I have talked to have a $1500 retainer fee and I can not afford that. If there is anyone that is more "budgetable" that I could be reffered to, that would help out a lot as well.....

 

[rmet4nzkx]

Why was he given primary custody?
Normally, with joint custody, in the case of deployment, the other parent (NCP) would get custody and child support, but I have a feeling there is something else going on here and there is somehting you are not telling us, since you are looking for ways to get the upper hand and won't say why you don't have custody. When custody is awarded the best welfare of the children is considered, so no, mothers are not favored over fathers except for infants.

 

[jjixsaw]

Reply to rmet4nzkx

The reason I dont have full custody is because I did not have a lawyer on my side at the time I signed the divorce papers. Essentially the lawyer and my (now) ex husband said that the wording "did not matter" because it was a "joint custody" so I was pressured into signing the papers in front of a notary so that he could go out of town for army duty. I definitely did not at all intend for this to happen... So when you say that there is something I am not telling I guess that would be it, in short I made a mistake that I wish now I could take back...

my question now is: is there any way that I can actually fix the situation and get primary custody? That is what I am mostly worried about, but since I make close to minimum wage, the child support would definitely help out. Are there any recommendations.... Also, not sure if this might also help, but my ex lives w/ his new girlfriend who already has two kids - he also did not give me notice that he moved, and actually moved out of the city about an hour away. Transition from parent to parent is made at school which is in same town I currently live in. Any other suggestions?

 

[thetsgtswife]

However isnt it is his responsibility to have correctly notified the courts at the time of the divorce that he was in fact in the military? Because if he had not and neither party noticed the clause until after the divorce papers went through, is that something that could potentially give me the "upper hand" or possibly something that I could use against him to at least get primary custody, or just anything whatsoever?...

No because it would have been just as much your responsibility as his to NOTICE the error and get it taken care of. He didn’t lie to the courts or to you about being in the military as you stated that he had been in the Military since August of 1999.

Further more once a child has lived in a stable environment and is thriving in that environment, a typo in an order isn’t going to cause them to move that child from the fathers home.

however in the divorce decree it does state that the child's primary address is to be with the father. I am assuming that that would make him the "primary" custodial parent...??? Yes you are assuming right. Are you just now realizing all of this information in the order? Almost 5 months after the order was issued? Within a few minutes of receiving my orders I can guarantee you I knew what was in each of them after receiving them from our attorney.

I dont know what a "family plan" is that you're reffering to, but I assume that it means that in case he gets deployed he would be able to give our son to someone in his direct family that can take care of our son while he is deployed? If I am correct on that, than the answer is no - I do not have any knowledge of a family plan set up.

Your assumption is correct.


Is there any way, shape or form that the custody can be modified where I am the primary custodial parent? (Once again assuming that by primary custody parent, under a joint custody order, you mean the parent whom the child has the primary address with). And why could the NCP (if in this case I am the NCP) very seldomly be awarded child support? Honestly I don’t think so when it seems the concern you have is wanting CS, that’s not going to make the court change custody to you. A NCP doesn’t get child support because they are the NON CUSTODIAL PARENT meaning the child is not living with them hence No Child Support. In fact you are lucky because you do not have to pay support to your ex for the child.

Is there anything specific I might be able to do to have the upper hand on this matter if I am to take him to court over custody/child support modification. Don't courts usually tend to lean towards the mother in these cases? NOPE, its more interested in the best interest of the child, not just for the mom or for dad. I have custody of my son and my husband has custody of his son (and HES active duty military, she wasn’t)

The only thing I can really tell you that will/might help you is to hire an attorney and to really pay very close attention to what you sign or agree to sign.

Also, not sure if this might also help, but my ex lives w/ his new girlfriend who already has two kids - he also did not give me notice that he moved, and actually moved out of the city about an hour away. Transition from parent to parent is made at school which is in same town I currently live in. Any other suggestions? Does your divorce decree say he cant move with the child? I have a feeling it doesn’t since he is active duty and he will have to move from time to time and if it’s not in the order that he can’t move then no it will not make a difference if he moves. AND in most situations the clause(if there is one) usually states cant move more than 100 miles away and this doesn’t sound like its 100 miles away either, even if its in the clause.

NOT flaming you in any way but I have to ask, are you upset because he is moving or are you upset because its with a girlfriend and her 2 kids and you are just mad now and want to get even now? It really sounds as if you want to get even. But I could be wrong.

 

[Whyte Noise]

Oh Good Lord... Why, oh WHY is it necessary to ask every non-custodial mother that comes here asking for advice why they don't have custody? And then assume that there's "more" to the story than they are telling? Start asking the fathers that are NCP's the same question. Ask them why they don't have custody.

/endrant

In Missouri, if a custodial parent moves the primary residence of the child they are required to give 60 days written notice, sent certified return receipt requested, to the NCP. It doesn't matter if they're moving 5 miles or 500 miles, they have to give that notice. So, if her divorce decree was issued after August of 1998, this law applies. For reference, please see here:

http://www.moga.state.mo.us/statutes/C400-499/4520000377.HTM

NOW... as long as the child wasn't relocated, he doesn't have to give you notice. If the child was relocated, then he was required to. So, if he's stationed at Ft. Leonard Wood but the child is still in the same place she was (with the g/f for example) then there's nothing he did wrong. If he and the child moved though and he didn't give you the required notice, that "might" be something to take back to the court. However, I doubt very seriously if it would be enough to warrant a custody change. Matter of fact, if I were a betting woman, I'd lay odds on it. It might get him a "Don't do that again" from the judge, but you'd be extremely lucky to get more than that.

I can't believe that you didn't go over those papers with a fine toothed comb when you got them. My ex and divorced in much the same way. He paid the attorney $500 to draft the papers. He signed, and the attorney then sent them to me to sign. You can bet your sweet patootie that I didn't sign a thing until I'd read them. Maybe I should have went ahead and signed.... she'd put in the papers that he was to pay me $1,200 a month in CS for children that he was getting physical custody of. But... just like your papers, it wouldn't have been enforceable as it was a typo. A HUGE typo, but a typo nonetheless. I informed her of it, she corrected them and sent them back to me and I signed them. Attorneys are only human, and they (as well as their staff) make mistakes. The courts realize this and would have just issued an addendum to the order to strike the wrong thing and add the right thing (which is what my husband's attorney did.)

Like Sgtswife said, it's rare to have an NCP get child support... because they are the NCP. They don't have custody of the child, and CS is paid to the one that does.

If he were to get deployed overseas, then THAT could be seen as a change in circumstances you can use to seek custody. But from everything you've written so far there's nothing to base a change on, other than the fact that you didn't read the original paperwork and now that you have, you don't like it. Sorry to sound so blunt, but you've not mentioned anything at all that would constitute a change of circumstances so that custody would be changed.

IMHO, at best, you can file contempt on him for not notifying you of the move if your child moved with him.

 

[rmet4nzkx]

The reason I dont have full custody is because I did not have a lawyer on my side at the time I signed the divorce papers. Essentially the lawyer and my (now) ex husband said that the wording "did not matter" because it was a "joint custody" so I was pressured into signing the papers in front of a notary so that he could go out of town for army duty. I definitely did not at all intend for this to happen... So when you say that there is something I am not telling I guess that would be it, in short I made a mistake that I wish now I could take back...

my question now is: is there any way that I can actually fix the situation and get primary custody? That is what I am mostly worried about, but since I make close to minimum wage, the child support would definitely help out. Are there any recommendations.... Also, not sure if this might also help, but my ex lives w/ his new girlfriend who already has two kids - he also did not give me notice that he moved, and actually moved out of the city about an hour away. Transition from parent to parent is made at school which is in same town I currently live in. Any other suggestions?

Mistakes are correctable and not the reason to change custody. There is more to the story, that is why I asked. With a person in the military there are allowances for residence, so even if Dad moved, there is linkly to be little or no consequence to him as there is no effective change to you as the exchange takes place in your town as before. Is he refusing to tell you where he has moved? Is that because there may be some form of invasion of privacy or harassment? Since you are on your own here, without an attonrney. Since your ex has been in the military such a long time I'm surprised you know so little re things like the family plan in the case of deployment. It is possible you can file for modificaiton of the orders and of course to correct the error in the orders.

 

[lovemygirls2]

Transition from parent to parent is made at school which is in same town I currently live in.

Ok, gotta ask... School is in your town. Dad moved over an hour away. Custody order gives dad primary address. But does dad have child most of the time? I ask because most people will not drive their child to school over an hour away from their place of residence. It made me curious because you never stated the time share between the parents... Do you as NCP have every other weekend? How is parenting time/visitation split?