My wife gave me a legal separation after 6 years of marriage which I signed and gave back to her lawyer. Now she refused to sign her part of the separation, she is no longer interested in a divorce but I can no longer live with her.

Can I use the copy of the separation she gave me in court.

Answer

You can move out and then file for divorce. The biggest problem in this scenario is that you’ve decided you want a divorce but she seems like she isn’t sure — and you still live together.

In all almost all cases, spouses have to live separately for a court to grant a divorce. Many people believe that if you leave the marital home that you have “abandoned” or “deserted” the home and therefore you are at fault — this is rarely the case. You should consult with a local lawyer about your options and what you may want to do before you move out.

My husband and I are currently living in seperate homes. Since, he is living at a location where he has not signed the lease he keeps himself on this lease, which is where I am located. He will not give up the keys and the landlord is not able to request them, nor will he sign off on the lease stating that he is not living here. I also do not know where he is living now. He thinks he can continue to come and go as he pleases, even when I am not here. What am I able to do, legally?

Answer

If you have filed for divorce, then the Court has the power to order an “exclusive use and possession” award of the marital home. You must ask for that in your complaint for divorce and, based on the facts here, the Court will probably grant it. If he continues to enter the house, you should consider speaking to an attorney about getting an injunction to prevent this harassing behavior. The Court may require him to give you the keys, or once you have an order you can change the locks. Remember, that you deserve privacy in your residence just as you cannot enter his residence, he cannot enter yours.

In the meantime, you’d be wise to lock up your valuables or keep them at someone else’s house.

What are the benifits and disadvantages to both sides? Also how do you go about signing over parental rights?

Answer

Agreeing to the other parent having Custody and signing away your “Parental Rights” are very different things.

First, you cannot sign away your parental rights. Termination of parental rights (TPR) can only happen by court order. This involves situations where the child has been abused or severely neglected and a TPR is not something that you would consider voluntarily.

Custody, on the other hand, can be shared by two parents or vested in one parent by agreement or court order. If your goal is to allow the child to live primarily with the other parent, then you can accomplish that by a consent order filed with the court as long as you have an open case. Still, you will want to set up an access schedule so you can be guaranteed certain times to see your son/daughter.

If part of your question is asking how can a parent avoid paying child support for the child, the short answer is that you cannot avoid this (unless someone else adopts the child) since the law states that both parents have a duty to financially support the child.

Part of our custody disagreement is my ex-wife’s new husband had a felony 10 years ago, for evading and weapon possession. Just last year with his ex-wife, he had domestic assault with bodily injury. My kids are not coming home frightened because items are getting broken and they are screaming and yelling in front of the kids. He has a pretty extensive background from 1997-2001, then again in 2010 will a judge look past this? She knew nothing about it, she constantly has the kids around strange men, including a sex offender. They met online and met face to face 6 months later when he was moving in.
She is seeking full custody after 5 years of very limited involvement and unpaid child support.

Answer

Judges will consider the environment and household of the parents when determining how often and when the children spend time with the non-custodial parent. It sounds like you are seeking a modification/reduction in your ex wife’s time with the children. Or, maybe you are askign the Court to change custody over to you.

Since Courts want to include the non-custodial parent as much as possible, if you are asking a Judge to take away time you need to have good reason and that reason has to be a material change of circumstances that has happened since the last Court Order. If the children are scared of her new husband it is important to try to fix this. Counseling for the children and discussion with your ex-wife may help. If the children are in danger are truly in danger than you can seek assistance from police, child protective services, school counselors, and/or child’s therapist. From your description it is difficult to determine whether the new husband is just a real jerk or whether he presents a real threat to the kids. Talking with a lawyer will also help you determine the risk.

He has stopped making the car payments that was agreed upon in our divorce in Dec.. The car is both names so he is messing with my credit as well. I just lost my job and can’t possibly make the payment now. I have asked the bank for some help and I did pay a small amount this month so it will not be negative on my credit but I don’t know how long it will take to get him into court if I can’t serve him. He works on base on Lakehurst can I have him served somehow there?

Answer

You can serve papers via certified mail restricted delivery to any adult resident of his household or you can pay the local sheriff’s department to serve him, or — the easiest method — get someone over 18 to hand him the papers and fill out an Affidavit of Service to be filed with the Court. You can pay anyone (over 18) to deliver the papers to him. If he won’t take the papers have the server leave the papers on his desk, on his car hood, or within his reach. He will have 60 days to answer since he lives out of state.

If you have a Divorce Judgment that requires him to pay the car payment then you may want to file for contempt.

You should check with the local JAG Office because JAG will probably be able to help you serve him and if there is a Court Order requiring him to do something his commander and/or JAG will probably order him to comply adn make the payments. Do not be worried about asking JAG for help, JAG is there to help service members and to help the family members of service members.

Me and my husband are married for one year. If we divorce, do I get a house which my husband purchased after we married. I am a housewife and have no children.

Answer

The house is marital property, regardless of how it is titled. You would be wise to check to see if your name in on the title and/or the mortgage. Even if it is not, you have an ownership interest in the house.

My office is in Howard County so we are very aware of the market trends in Ellicott City, that being said it is important to note that you are only entitled to 1/2 of the equity in the house after the mortgage is paid off. It would be better for you and your husband if he were to buy you out of your share rather than sell the house and pay realtors and taxes.

You will want to speak to an attorney as soon as possible to better understand your rights.

My ex-husband has a 20+ year history of alcohol and drug abuse, sex with prostitutes during our marriage, Bipolar Disorder, domestic violence and emotional abuse of the kids…He’s filed a Modification so he can get unsupervised visitation and shown he’s clean & taking meds. How likely is he to get unsupervised visitation when he was noncompliant for almost 3 years of the court order for testing AND admitted blatant deception throughout divorce proceedings (lying to judges, custody evaluator, etc.)? I have no S/A or M.I. history & been taking care of kids very well for nearly 3 years.

Answer

The Court will consider your ex-husband’s more recent behavior as a material change in circumstances IF his behavior is different and better. The real question is who is he NOW? Is he still emotionally unstable? Does he still present a threat to the child? What is the relationship between the child and the Dad now? You didn’t say whether or not the Dad has followed the order recently or how the supervised visitation is going – that is very relevant to whether or not he gets unsupervised access. In these cases, the Judge will heavily consider the reports from the visitation supervisor also.

Speaking to a lawyer could help you determine what is best for the child now.

With exception to Child support, my sons father has ignored everthing in the court order that has been in place since 2001.

Answer

Your statement mentions that the father has ignored everything in the court order. If this is so then can file a petition for contempt and be able to articulate what you want the Court to do. If the father hasn’t paid child support you have other options such asking for an earnings withholding order or setting up an account with the office of child support enforcement.

However, if your main frustration with the father is that he is not visiting with your child, then it is important to note that the Court cannot make him spend with his child. While it is a very sad situation where a father doesn’t want to spend time with the child, it is not legally contemptuous behavior on his part.

I want to relinquish my ex-husbands parental rights after 5 years of no contact/abandonment. He was recently served child support papers after 2 years of avoiding being served. A masters hearing was scheduled but cancelled due to his requesting genetic testing. Can I still relinquish his rights?

Answer

The Court is most concerned with the best interests of the child. Therefore, unless someone else (ex: step father) is willing to adopt the child, the Court will continue to require the biological father to pay child support. While there is no connection between child support and access time with a child, the father will always have the right to ask for time with the child and the Court will consider it if and only if it is the child’s best interests.

Termination of parental rights (TPR) is VERY different then a child visitation order that forbids contact with the child. A TPR case is a very serious matter involving facts of child abuse and/or extreme neglect. You may want to discuss the differences with a lawyer before you pursue this action.

I am very much in my child’s life. I see her every weekend (If the mother feels like letting me see her). The mother and I are currently going through a divorce and I requested that she has the sole physical custody and joint legal custody. Recently, I found out that she filed a counter-claim for sole legal custody. What are my rights as a father who pays support and makes effort to be with my daughter when she is not in school? I want to know what I can do so she don’t fully take my rights as my daughter’s father.

Answer

Mr. Haven’s answer is a good one but focuses on legal custody.
As to physical custody, that is defiend by where your child lays his/her head at night and how often. The Court will consider a lot of facts and factors in an effort to make a decision and a schedule that is in your child’s best interests. Until and unless there is a court order in place both parents have equal rights to the child under the law. Still, if the mother has been doing most of the caretaking and the child lives with the mother most of the time, you should consider what is best for the child right now as far as the child’s schedule and time with you goes before you insist on more time. There is nothing wrong with wanting and asking for more time but it is always ebst tom come to a mutual agreement with the other parent.

Custody cases are very difficult and emotions can get in the way of seeing what is best and most reasonable. You would be well served to speak with an attorney about this. The most important thing is keeping your child out of the middle of the disagreement about custody. One thing you can do is to sign up for a co-parenting class. The Court will require you to do it anyway and both parents can learn a lot from it. Montgomery County uses a different group but the National Family Resiliency Center in Columbia has great classes (ww.divorceabc.com) and the Court recognizes them as an approved provider.

My daughter’s father and I (never married) have not gone through the court for child support or custody/visitation arrangements.

What we’ve been doing is working well. I just want the courts to be aware of our situation.

Answer

Perhaps this is a case of “it isn’t broke, then don’t fix it.” If everything is working well, then why ask a Judge to decide?

If you file a Petition for Custody and Child Support you are giving the decision to a Judge. Please note that even if you file a written agreement, until that agreement is incorporated into a court order the Court can overturn or change that agreement based on the best interests of the child standard.

A good family law lawyer will help you decide whether you need to go to court or not. Another option is talking to a counselor, mediator, parent coordinator, and therapist about how to resolve differences in parenting and scheduling.

My sons father has filed for joint custody to lessen his child support payment, I was served with papers today and have 30 days to respond. What should I do? How does joint custody affect child support? Can I counter sue for full custody?

Answer

It is important to know whether or not there is an existing custody order in your case. If so, the father will have to prove that there has been a material (important) change in circumstances that warrants the Court giving him more time with the child. To answer your question, child support is based on the number of overnights that a child spends with each parent.

Once a parent has at least 128 overnights scheduled each year with the child his child support goes down. The more overnights the less the child support. This makes sense because the more a child is with a parent the more expense that parent incurs for food, utilities, clothing, repairs, and the need for a bigger residence. Usually a parent doesn’t save any money by having the child with him/her more — so it’s ironic that many parents will fight for more time to save money (although most parents just want to have time with their child). Based on this maybe you could work out a schedule with the Dad and then run the child support guidelines to see what he has to pay.

Either way you should file an Answer within 30 days. You can pick up a blank Answer (Form DR50) on line: www.courts.state.md.us or you can drive to the Court and get a form.

I won the first part of the case which was the custody and it was custody trial first. In another trial under the same case the divorce complaint was dismissed by the judge because my wife doesn’t have ground for divorce. Even though the case still open, she went and filed new complaint based on desertion in another county in Maryland. Can she file for new case while the existing case still open. The child support of the custody was not resolved, we pushed it to the final divorce case.

Answer

Whoever files for divorce must have a reason or a ground that is recognized by MD Law. To get a no-fault divorce you must be separated for at least one year mutually and voluntarily but there are other reasons/grounds for divorce. The Circuit Court for Montgomery County splits the cases in two (Called bifurcation) and resolves custody first and then the divorce case (and property issues) are resolved months later. In your situation, you should file a Motion to Dismiss her new Complaint in the other County and consult with a lawyer to determine if you have grounds to file for divorce now yourself. I would not rely on her Complaint for Divorce and you would be wise to file for divorce based on more than one ground. You can do this in the existing case. The good news is that she seems to really want to be divorced or she wouldn’t have filed in another county and therefore I may assume that the separation is mutual and voluntary and soon the Court will grant you a divorce.

Child is 2yrs old… I did not find out he was mine until he was almost 1yrs old. The mother and I were never married. I have another child with my wife. I am currently on child support but I filed for modification due my recent unemployment. The mother has cause numerous problems and has even stated that she does not what my wife touching her son therefore he is not allowed to our house… she does not want him to establish a relationship with his little brother. She is not willing to agree to anything. I filed for custody but temporary custody was awarded to her mom while she is overseas. I believe it is in the best interest of all my children for me to terminate my parental rights of my 1st born. I’ve only seen him approximately 5 times because I am forced to sign in if I want to visit him.

Answer

The Family Courts first priority are the best interests of the child. Therefore, both parent have a duty to financially provide for the child until he is 18. This is true regardless of how often you see your child or the quality of your relationship with your child. Therefore, the only way to get rid of your financial obligation for your first born is if someone else adopts him. If that happens you can consent to the adoption.

You are not required to see your son if you do not want to but you do have the right to see him and the Mother cannot unreasonably withhold time and access. You mentioned that the mother was awarded temporary custody. If so was there a visitation schedule that was ordered? You can speak with an attorney about this if you are interested in having scheduled time with your son.

Since your son is only 2 years old, the amount of time you get to see him may seem unfair to you. Remember that this situation with your son is only temporary. As your son gets older and more familiar with you, you may ask the Court for more time with him. Custody and visitation are always modifiable based on a material change in circumstances. If you want to have more of a connection with your son, be patient, give it some time, be patient, and see your son as often as possible even if it is for a short visit.

If you really don’t want to have contact with your son, then the Court will not make you see him. But, the Court will make you pay some child support until he is 18 and graduates high school.

There is evidence that pressure has been applied to the kids by their mother and her husband. If I am willing and able to have the kids spend time with me can my ex-wife file for more child support?

Answer

The Court will consider the desires of the children since they are so old (14 and 16), the real issues are (1) what do the children really feel and (2) how weight will the Court give to their respective desires. The 16 year old is old enough to file his/her own petition to change custody. You mentioned “pressure” from the mother and stepdad and that may be parental alienation but it is very hard to prove. Taking the mother to court may push the kids away further. This must feel like a no win situation so it is important to focus on strenghtening your relationship with the kids. Kids this age really want their opinions to be respected and you may push them away if you tell them how they feel and that they feel that way only because of their mother. Family therapy or just spending more time with them on their terms (shorter visits, going to movies, dinner, etc.) may get them talking about what is bothering them.

As for your child support question, if you have shared residential custody and you (or the mother) reopens the court case and a new court-ordered schedule is developed where you have less overnights with the kids then the Court probably will increase the amount of child support. I suggest speaking with a child custody lawyer about this.

I won the first part of the case which was the custody and it was custody trial first. In another trial under the same case the divorce complaint was dismissed by the judge because my wife doesn’t have ground for divorce. Even though the case still open, she went and filed new complaint based on desertion in another county in Maryland. Can she file for new case while the existing case still open? The child support of the custody was not resolved, we pushed it to the final divorce case.

ANSWER

Whoever files for divorce must have a reason or a ground that is recognized by MD Law. To get a no-fault divorce you must be separated for at least one year mutually and voluntarily but there are other reasons/grounds for divorce. The Circuit Court for Montgomery County splits the cases in two (Called bifurcation) and resolves custody first and then the divorce case (and property issues) are resolved months later. In your situation, you should file a Motion to Dismiss her new Complaint in the other County and consult with a lawyer to determine if you have grounds to file for divorce now yourself. I would not rely on her Complaint for Divorce and you would be wise to file for divorce based on more than one ground. You can do this in the existing case. The good news is that she seems to really want to be divorced or she wouldn’t have filed in another county and therefore I may assume that the separation is mutual and voluntary and soon the Court will grant you a divorce.

My wife and I are getting ready to go through a divorce, I had a peace order granted against her and am going to court to have her removed for up to 1 to 2 years, so that the divorce can be finalized. However because of this up coming court date she has drained all of my/her bank accounts and put most of the money in her personal IRA. She has also open a new personal account in her name with the money she took from me out of my account.

However the bank sent her new bank/debt card to my home with her new pin and account information. So my question is this, can I legally take that card even though I’m not on the account but am still married to her, go and retrieve some of the money that has been taken from me under false pretense? We have 2 children that are now in my custody and I have no means to take care of them without the money she stole. So what can I legally do with the bank card that I have in my possession?

ANSWER

The Family Court has the authority to order a monetary award to one spouse to equalize (more or less) the assets. However, that won’t happen until the final divorce trial. In the meantime, your wife may spend all the money. Therefore, you may need to ask the Court for an Injunction to freeze that money in that account (and it is fortuitous that you have all the account information) but injunctions are complicated and you will need to speak to a lawyer to do this. I won’t tell you to take the card and you can’t access that money without her permission (or a Court Order) because that would be illegal. Still, the money in that account is yours (and hers). This is why you can ask the Court to freeze it until the final divorce hearing. Also the Court may order her to pay you child support and alimony at the first hearing (called a pendente lite) hearing and may help you with your expenses between then and the final hearing.

My husband abandoned me over a year ago, He is somewhere in Florida. I’m being evicted. Is abandonment illegal? What are my rights?

My husband left me while I was out of State attending a funeral. We were struggling with money like everyone else. He DID NOT tell me that our mortgage was 3 months behind. He told my son he was going to SC for a 4 day trip to visit a friend of his while I was gone. His return date passed. He made no calls to me. I was going to report him missing. My stepson was not returning my urgent calls as to where his father was. That was in 09/2009. Since then I found out he is living in Florida and employed. He HASN’T SENT MONEY, NOR GOT ME HEALTH COVERAGE. My father is paying all of my utilities, medicine(about $800-$1,000) a month. I am in bad health. I have food stamps now. Bank Foreclosed on the house,and I’m being evicted on Feb.3,2011. I don’t have another place to live. What rights do I have?

ANSWER

The longer you wait the bigger these problems can become and you’ve waited since Sept. 2009.

At this point, you have the right to file for divorce and ask the Court to award you alimony, health insurance coverage, mortgage contribution, and/or a monetary award. Also if you have a child with him you can ask for custody and child support. Still, it will take months before the Court can order any of these things so you will need to figure out how you can pay your bills in the meantime — and the Court cannot do anything until and unless you file for divorce and get him served. You’d be wise to talk to your mortgage lender about your options or talk to a foreclosure attorney to stop the eviction. MD Legal Aid Bureau or MD Volunteer Lawyer Service has a foreclosure prevention project that may be able to help you.

I signed a contract 10 years after marriage, whereby no custody of kids/finance/property will be given to me, if I divorce/separate. This contract was signed in a law firm, with my husband’s attorney supposedly being my attorney too.

Frankly, coming from another part of the world, I never understood all of this legal stuff, but sometimes we are in situations with no choices at that moment, as that time I was not given a detailed explanation about the contract. That’s where I lost my knowledge to power, by not knowing what I was really signing. At this time I was not working/never drove and thus could not afford an attorney. Would this contract expire because the notary date/license expired? Is sharing the same attorney valued?
Would I lose custody of my teenage kids and become homeless if I go legal? (as my husband says this will be so of me).
Could this contract be of no value?

ANSWER

You need to speak with an attorney and show him/her the contract you signed. The Agreement may be unenforceable for a few very important reasons (you had no attorney, unclear who the attorney was representing, you didn’t have enough information, the outcome is unconscionable, etc.) and that the child provisions (custody, visitation, and child support) are always modifiable. Further, if your children are teenagers then their wishes will be heavily considered by the Court when the Judge considers all the facts to arrive at a decision that is in the children’s best interests.

It is unclear whether or not there is an existing case filed with the Court but it seems that you should do that as soon as possible while your attorney tries to come to a settlement with your husband and his attorney. Finally, if you are still living with your husband you will need to speak with a lawyer to determine if you are eligible for a divorce at this time and if not you will need to know what needs to be done to begin that process.

I have a custody/visitation order that was done in DC. I now live in Charles county MD for the last 3 years and want to modify the agreement. Neither parties live in DC anymore. Can I transfer the case to Md somehow? If so, can I do the paperwork on my own without retaining a lawyer and what forms are needed?

ANSWER

You will need to file a “Motion to Enroll A Foreign Judgment”* stating the reasons why you believe that Charles County, Maryland has jurisdiction over the child. Under the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) a must live in the State (Maryland) with one parent for at least six months before the State has jurisdiction. Still, it is a little more complicated than than and since DC is so close to Charles County, MD it may not be worth it to transfer the case. I assume that you want to change the terms of the existing Order. If not, then it may not be worth the trouble. If so, it is easier to try to get the other side to agree to transferring the case to Maryland via a Joint Motion.

*The Motion would include a Certified Copy of the DC Order. There is a small fee for this and a fee to open the case in Charles County.

My child’s father never answered his summon or default order. I ask for sole custody because the father doesn’t have a stable home, no job, history of violence, and history of taking his kids from the mother. I have a witness and documents. So what will the outcome be when we go to court?

Additional information

I also called child protective services on him because he left her in the parking lot in her stroller. The worker told me that was neglect. So I can’t see the judge giving him any custody. What will happen when I tell the judge that?

ANSWER

In Custody matters, the Court cannot exclude a parent from participating even when there is a default order. So, the Dad may show up and you have to be prepared for that. You prepare your case to prove all the things you need to prove. For example, you should have witnesses and paperwork to show your income, Dad’s income, daycare costs, health insurance costs, etc. Bring report cards, immunization records, etc. to show the child is healthy, and doing well in school. Pictures of your house or of the child in activities may also help. Definitely bring 1-2 witnesses who have observed you and your child often and recently. If you are alleging that the Dad is not fit and proper to have custody or extended visitation bring paperwork and witnesses to corroborate your testimony on this. In the end, the Court will order custody based on the child’s best interests. It would be helpful for you to speak with an attorney about this.

]]> http://www.mulinazzi.com/if-you-have-a-default-establishment-in-an-child-custody-case-does-the-defendant-has-to-show-up/feed/ 0 http://www.mulinazzi.com/how-can-a-sixteen-year-old-change-their-custody-orders-if-one-of-the-parents-is-emotionallypsychologically-abusive/ http://www.mulinazzi.com/how-can-a-sixteen-year-old-change-their-custody-orders-if-one-of-the-parents-is-emotionallypsychologically-abusive/#comments Fri, 28 Jan 2011 02:54:17 +0000 admin http://www.mulinazzi.com/?p=396 Continue reading for the answer...]]> How can a sixteen-year-old change their custody orders if one of the parents is emotionally/psychologically abusive?

My friend is living with her mom, who is severely emotionally and psychologically abusive. She is depressed, self-harming, and suicidal, and it is growing much worse from living with her mom and her mom’s boyfriend.

Her mom repeatedly insults her and tells her that she doesn’t care if she kills herself. She recently took all of her possessions from her room, but left a razor on the windowsill. Also, they fight a lot and her mom often yells at her that everything is her fault, etc. There are also many other cases of emotional abuse. Her other friends and I are very worried about her well-being. She just turned sixteen and would like to live with her dad instead; is it possible to file for this? How can we prove emotional abuse to the courts if her mom lies?

ANSWER

MD Law (Fam. Law 9-103) allows a 16 year old to file a Petition for his/her own custody. While the 16 year old has to be able to tell the Court why it is in her best interests to live with her Dad or elsewhere, the 16 year old will not have to prove that her mother is emotionally ill or that she is a threat of harm to her. Still, the Court has to be able to award her custody to someone else so Dad will have to file a Petition or an Answer asking that he get custody of the 16 year old.

If the 16 year old fears for her safety she has a few options and these should be discussed with an attorney. Child Protective Services may need to investigate the situation and unless she feels safe she probably shouldn’t stay where she is. In spite of her maturity, she should talk this over with a responsible adult (her Dad, school counselor, therapist, etc.) to make sure that everyone is safe.

]]> http://www.mulinazzi.com/how-can-a-sixteen-year-old-change-their-custody-orders-if-one-of-the-parents-is-emotionallypsychologically-abusive/feed/ 0 http://www.mulinazzi.com/in-a-shared-custody-situation-does-the-law-require-either-of-us-to-inform-the-other-of-who-is-living-in-the-house/ http://www.mulinazzi.com/in-a-shared-custody-situation-does-the-law-require-either-of-us-to-inform-the-other-of-who-is-living-in-the-house/#comments Fri, 28 Jan 2011 02:50:06 +0000 admin http://www.mulinazzi.com/?p=393 Continue reading for the answer...]]> In a shared custody situation, does the law require either of us to inform the other of who is living in the house?

If my ex-wife moves in with a boyfriend or I with a girlfriend, does that have to be disclosed to anyone? As long as the address is given, is that enough?

ANSWER

Informing the other parent of who lives with you it is not “required” by law; HOWEVER, it is important to do so if you have shared custody of the child. When Courts award shared custody, the Judge needs to know that each parent can cooperate and communicate with the other to reach shared decisions about the child’s welfare. This the basis for having joint legal custody.

Shared physical custody means that the child spends at least 128 overnights each year at both houses. When a child “lives” with both parents the parents need to cooperate and communicate to make sure that both parents know what is going on in the child’s life. Each parent must inform the other if the child was up all night throwing up or hurt himself playing outside. Likewise, the other parent should know who is living with the child on a daily basis. Ideally, each parent would have a chance to meet the child’s roommate, even if it was the other parent’s new boy/girlfriend.

To keep this information from the other parent puts the child in the middle of the conflict by requiring the child to keep a secret. If the parents cannot do this, then perhaps shared custody isn’t appropriate for the family and, if there was a custody modification case, the parent who refuses to disclose this type of information would not look good in the eyes of the Judge.

]]> http://www.mulinazzi.com/in-a-shared-custody-situation-does-the-law-require-either-of-us-to-inform-the-other-of-who-is-living-in-the-house/feed/ 0 http://www.mulinazzi.com/my-girlfriends-son-does-not-want-to-see-his-father-he-is-15-can-he-refuse-to-go-see-him/ http://www.mulinazzi.com/my-girlfriends-son-does-not-want-to-see-his-father-he-is-15-can-he-refuse-to-go-see-him/#comments Fri, 28 Jan 2011 02:47:13 +0000 admin http://www.mulinazzi.com/?p=390 Continue reading for the answer...]]> My girlfriend’s son does not want to see his father, he is 15, can he refuse to go see him?

How would the courts handle a case were there is repeated drug use by the father and the son is handicap with cerebral palsy. The child is 15 and does not want to visit his father. He has given his father several chances to stop doing drugs, and he knows when he is with him whether he is on them or not. Would the court listen to the child in a case like this?

ANSWER

The Court will give substantial weight to the 15 year old’s choice. Further, MD Law allows for a 16 year old to file a Motion to Modify Custody on his own behalf assuming he has sufficient mental capacity to do so.

The Court is most concerned with protecting children so in a situation where the Father is abusing drugs it may be necessary to stop access between father and son altogether until the father can get help. You should file a Motion to Modify Visitation and you may need to file for an Emergency Hearing. In your County, the Court will give Dad (or both parents) a drug test that day.

]]> http://www.mulinazzi.com/my-girlfriends-son-does-not-want-to-see-his-father-he-is-15-can-he-refuse-to-go-see-him/feed/ 0 http://www.mulinazzi.com/am-i-hurting-myself-in-court-by-trying-to-avoid-conflict-by-not-going-to-my-childs-mothers-house-with-her-boyfriend-there/ http://www.mulinazzi.com/am-i-hurting-myself-in-court-by-trying-to-avoid-conflict-by-not-going-to-my-childs-mothers-house-with-her-boyfriend-there/#comments Fri, 28 Jan 2011 02:43:06 +0000 admin http://www.mulinazzi.com/?p=385 Continue reading for the answer...]]> Am I hurting myself in court by trying to avoid conflict by not going to my child’s mother’s house with her boyfriend there?

My child’s mother has a new boyfriend (one of many) since we split and I’m trying to avoid confrontation with her new boyfriend. We don’t get along well and the only way I can see my child is if I go to her home. I don’t feel comfortable there and I really want to see our child. Am I hurting myself in court by not wanting to go and be there to avoid conflict? Is there anything thing I can do?

ANSWER

First, it’s great that you are avoiding conflict with the new boyfriend. Conflict with him will only add tension to your child’s home.

I am uncertain why you are only seeing your child at the mother’s house. Is this court ordered? If there is no court order in place then you have equal rights to access with your child and you can see him/her at all reasonable times and places. If your child is school-aged, you can always visit him/her at school.

Perhaps a reasonable and temporary solution is for you to your child at her mother’s house or at a park with one of her friends nearby. If you do this a few times she should see that you love and care for your child and that you will always bring the child back.

Finally, I think you are right that you are hurting your case and your relationship with your child by not seeing him/her. You can endure a few obnoxious comments and dirty looks to see your child. If you can’t work something out with the mother, then you should file a Petition for Custody or Visitation with the Court TODAY. Good luck.

]]> http://www.mulinazzi.com/am-i-hurting-myself-in-court-by-trying-to-avoid-conflict-by-not-going-to-my-childs-mothers-house-with-her-boyfriend-there/feed/ 0 http://www.mulinazzi.com/does-vacation-and-holidays-supersede-regular-visitation/ http://www.mulinazzi.com/does-vacation-and-holidays-supersede-regular-visitation/#comments Fri, 28 Jan 2011 02:33:37 +0000 admin http://www.mulinazzi.com/?p=378 Continue reading for the answer...]]> Does vacation and holidays supersede regular visitation?

ANSWER

I have full physical custody of my son. There is a court order in place that gives his birth father every other weekend of unsupervised visitation from Friday at 4pm till Sunday at 6pm. In my court order for child visitation it states that both parties are entitled to two weeks of summer vacation. It also covers holidays. My ex and I both share the holidays. I have my son on every Christmas eve and through Christmas day. My ex picks him up at 3pm and has him through the 26th at 4pm.
This year Christmas eve falls on Friday, which would be his normal day to pick my son up for the every other weekend visitation. I will have him through Saturday at 3pm. My ex seems to believe that I need to “make up” time because he will lose a full day. He is DEMANDING that I let him have our son on the Tuesday or Wednesday.
He has also filed a contempt case against me as I had the audacity to take two weeks’ vacation in the summer and he lost two of his weekends and I will not “make up” that time either. I was clearly told that vacation and holidays supersede his regular visitation, but our court order is very vague and does not spell this out. Please advise.

]]> http://www.mulinazzi.com/does-vacation-and-holidays-supersede-regular-visitation/feed/ 0 http://www.mulinazzi.com/does-the-non-custodial-parent-have-to-provide-health-insurance-for-the-child/ http://www.mulinazzi.com/does-the-non-custodial-parent-have-to-provide-health-insurance-for-the-child/#comments Fri, 28 Jan 2011 02:28:37 +0000 admin http://www.mulinazzi.com/?p=376 Continue reading for the answer...]]> Does the non-custodial parent have to provide health insurance for the child?

ANSWER

No, the non-custodial parent does not “have to” provide health insurance. However, if you do provide health insurance your child support is reduced dollar for dollar for the amount you pay for the child’s portion of the health insurance. Therefore there is no down side to paying for the health insurance. Also, depending on the benefits you have through your company, you may be able to take advantage of some tax savings (FSA or HSA (healthcare savings account)) for these expenses. There are courts that may order you to provide health insurance, esp. if the custodial parent does not have the resources to provide health insurance — in the end the best interests of the child is the court’s paramount concern.

]]> http://www.mulinazzi.com/does-the-non-custodial-parent-have-to-provide-health-insurance-for-the-child/feed/ 0 http://www.mulinazzi.com/my-exs-parents-filed-for-custody-for-my-three-children-in-maryland-i-live-in-uk-what-should-i-do/ http://www.mulinazzi.com/my-exs-parents-filed-for-custody-for-my-three-children-in-maryland-i-live-in-uk-what-should-i-do/#comments Fri, 28 Jan 2011 02:26:11 +0000 admin http://www.mulinazzi.com/?p=372 Continue reading for the answer...]]> My ex’s parents filed for custody for my three children in Maryland. I live in UK. What should I do?

I got married to a UK Citizen and live in the UK for about 3 years. I left my three children under 10 With the Mother. Their mother had a stroke some time in April of 2009. No one notified me I got the information through court records.becasue my ex’s parents filed for guardianship for my ex. and by law I could get emergency custody and take all my three children to UK. But I did not do that. I thought they should be around their Mom. But now my ex’s parents filed custody paper and sent them to me in UK.. I have 90 days to respond. What are my options?

ANSWER

Under Maryland Law and US Law, parents have a fundamental and constitutionally protected right to parent their children. This right can only be overcome if a third party (i.e. the maternal grandparents) can show that both parents are unfit or there are “exceptional circumstances” that warrant custody being granted to a third party. Defining “exceptional circumstances” is where the custody battle is fought. Most Courts and Judges require the third party to show that the children will be harmed is left with the natural parents or removed from the care of the third party. Assuming you are a fit parent and you can care and provide for the children, your right to parent and have custody of your natural children will trump the maternal grandparents’ custody case. All this being said, please consider what is best for the children before you decide to exercise your fundamental right. You know your children well enough to know what is truly best for them. Please consult an attorney and make sure you file an Answer with the court within the 90 days of being served.

]]> http://www.mulinazzi.com/my-exs-parents-filed-for-custody-for-my-three-children-in-maryland-i-live-in-uk-what-should-i-do/feed/ 0 http://www.mulinazzi.com/wife-had-tro-issued-against-me-what-should-i-bring-to-hearing-to-defend/ http://www.mulinazzi.com/wife-had-tro-issued-against-me-what-should-i-bring-to-hearing-to-defend/#comments Mon, 22 Nov 2010 02:41:48 +0000 admin http://www.mulinazzi.com/?p=300 Continue reading for the answer...]]> Wife had TRO issued against me. What should I bring to hearing to defend?

Wife spending took us from no debt to $1200+ on credit card in 2 wks. Spent $500 in cash from joint acct. No receipts. Repeated habit. Loud discussion ensued. (I didn’t shout or insult) so I went into purse & took away checkbook & ATM card to our joint/family account. Online, I changed acct access passwords protecting funds needed for household expenses (mortgage, utils, food, gasoline, insurance). Wife very angry at my actions stormed out taking our teen daughter to inlaw’s 1 hr away & Ignored my cell calls so I texted, forced to escalate. No reply! Wife filed TRO on msg excerpt w/out context alleging fear of my actions. No abuse or violence in my history (20+ years marriage). How do I defend myself in court against bogus allegations. Money tight. Divorce imminent.

Additional information

Text msgs all based on finances and concern for daughter. I love & miss daughter. Wife saw daughter’s college fund and decided it was ok to use for discretionary funds. I’m fed up w/ wife’s return to irresponsible spending binges.

ANSWER

In Maryland, your wife will need to prove by clear and convincing evidence that you assaulted her or threatened her with serious imminent bodily harm in order to be successful in getting a Final Protective Order.

Clear and convincing evidence is an extremely high standard and in this situation where there was no actual physical violence, your wife will need to prove that there has been PAST physical violence such that it is reasonable to take your text message as a legitimate threat of serious violence. To do this, she will need eyewitnesses, photographic evidence, hospital or police reports, etc. If there is no past history of actual violence, then it will be very, very difficult for her to prove that she had a reasonable fear of imminent assault.

How do you defend this? Well, do not say that wife’s inaction “forced you to escalate” because that could sound like you could be a threat to your wife if you don’t get your way. First, look at what she wrote in her Petition for Protection from Domestic Violence to get an idea of her allegations. She may have alleged that you threatened her during the scuffle over the ATM card and maybe she alleged you threatened her then. If she changes her testimony is different than her written allegations, then you (or your lawyer) should call her on this and question her as to why she “forgot” to write it down at the time she drafted the Petition.

You have the option of defending this petition or consenting to the relief she is requesting without a finding of abuse. This is called a Consent FPO and the Judges in the Circuit Court (during the imminent divorce) cannot presume that abuse occurred in the situation without your wife proving it to them at the divorce hearing. A third option is to file a divorce action in the Circuit Court and enter into a temporary agreement giving her some of the relief she is requesting (custody, child support, stay away, etc.) for a brief period while you await the first court hearing on these issues; if you want to use this option, wife will have to agree to drop the protective order case altogether after you sign a Temporary Consent Order in your divorce case.

Because a domestic violence case has serious financial implications and you are risking that the Court finding that you abused your spouse, you should consider getting representation for this hearing.

]]> http://www.mulinazzi.com/wife-had-tro-issued-against-me-what-should-i-bring-to-hearing-to-defend/feed/ 0 http://www.mulinazzi.com/at-what-age-does-a-child-not-have-to-visit-their-non-custodial-parent/ http://www.mulinazzi.com/at-what-age-does-a-child-not-have-to-visit-their-non-custodial-parent/#comments Mon, 22 Nov 2010 02:33:03 +0000 admin http://www.mulinazzi.com/?p=296 Continue reading for the answer...]]> At what age does a child not have to visit their non-custodial parent?

We live in Cherokee County, GA. My son is 16 yrs old. He does not want to visit his father because of the emotional abuse. He is constantly being negative toward my son. His step-mother is always criticizing my son because his clothes. His clothes are appropriate for his age.

His father pays weekly child support. He doesn’t buy my son clothes or pays for any school related expenses.

My son’s disposition changes when he speaks to his father. He goes from happy to depressed everytime he has contact with his dad.

ANSWER

Some states, like Maryland, have expressly answered this question in the State law or Code. In Maryland, when a child is sixteen (16) he can petition the Court on his own behalf to change a court order for custody or visitation. As a practical matter, when a child is younger than 16, if he has the appropriate maturity and a good reason for not wanting to visit with his father (like the ones you’ve described above), then he will also not be required to spend time with his father. With this being said, it is important to make sure that you, as the custodial parent, are not prohibiting the older child from seeing his father: likewise, you should not encourage this in anyway.

It is always best to have your child work with a child therapist on the issues and feelings associated with the child’s desire not to see his father. This will help both parents understand the situation and work towards repairing the damage to the parent-child relationship in an appropriate setting and timeline. Notably, this will also help you reduce the chance that father files a contempt action against you and it will help your defense if he does.

]]> http://www.mulinazzi.com/at-what-age-does-a-child-not-have-to-visit-their-non-custodial-parent/feed/ 0 http://www.mulinazzi.com/can-i-move-out-of-state-with-my-child-if-the-father-has-visitation-rights-and-pays-child-support/ http://www.mulinazzi.com/can-i-move-out-of-state-with-my-child-if-the-father-has-visitation-rights-and-pays-child-support/#comments Mon, 22 Nov 2010 02:29:29 +0000 admin http://www.mulinazzi.com/?p=293 Continue reading for the answer...]]> Can I move out of state with my child if the father has visitation rights and pays child support?

I live in Ohio and have a child support and visitation agreement with the father. I also have a daughter with a different dad but he is not in the picture, but we are all moving to Jacksonville, NC, to live on the military base with my fiance. What do I need to do for this to happen if anything?? I am the custodial parent and both kids live with me.

ANSWER

Most states view this situation from the perspective of the child and not the parent. As such, any court determination will focus on the “best interests of the child.” In these situations it is always best to try to work with the other parent, explain your reasons for the relocation, and come to an agreement about the move. Often, the other parent’s objection to the move is based on his/her fear of [emotionally] losing the child because s/he no longer seems important in the child’s daily life. If you can allay those concerns the other parent is likely to agree to the move. If not, the courts will want to know that this move is best for the child. Perhaps you are moving to a place with better schools, extended family and support, better job/lifestyle, better medical treatment for the child, etc. In any event, the Court will want to know that you have and will work hard to keep up contact between the child and the other parent. Offering longer access time on holidays, helping the child call, emails, Skype, or send letters to the other parent will go a long way to showing the court that your relocation will not cut out the other parent from the child’s life.

]]> http://www.mulinazzi.com/can-i-move-out-of-state-with-my-child-if-the-father-has-visitation-rights-and-pays-child-support/feed/ 0 http://www.mulinazzi.com/will-i-get-to-keep-my-personal-assets-obtained-prior-to-our-marriage-will-the-assets-acquired-since-be-split-50-50/ http://www.mulinazzi.com/will-i-get-to-keep-my-personal-assets-obtained-prior-to-our-marriage-will-the-assets-acquired-since-be-split-50-50/#comments Mon, 22 Nov 2010 02:26:12 +0000 admin http://www.mulinazzi.com/?p=291 Continue reading for the answer...]]> Will I get to keep my personal assets obtained prior to our marriage? Will the assets acquired since be split 50-50?

I married when I was 40 and had acquired a fair amount of assets which is documented.

In the 10 years of being married, my wife and I have generally made the same amount of money and split the expenses.

ANSWER

Without commenting on the law in the Community Property states, generally speaking all property acquired before the marriage is non-marital property since it is pre-marital. However, if you have co-mingled your pre-marital property with marital property, you may have changed the nature of the property into “marital” property. You will need to speak to a lawyer in your area so s/he can get more facts and advise you accordingly.

You explain that you and your wife have similar incomes, and that being the case, there would little or no reason to split the assets acquired after the marriage in any other way other than 50/50. The reason for this is because Family Courts are courts or equity and their main objective is to create a fair or equitable resolution at the time of divorce. Therefore, if your situation was different … for example, if you had a lot of pre-marital assets and you made significantly more than your spouse, the Court may divide the marital assets 60/40 or 65/35 in an effort to mitigate the disparity in both assets and income.

]]> http://www.mulinazzi.com/will-i-get-to-keep-my-personal-assets-obtained-prior-to-our-marriage-will-the-assets-acquired-since-be-split-50-50/feed/ 0 http://www.mulinazzi.com/if-an-agreement-has-been-reached-on-the-amount-and-duration-of-alimony-can-the-judge-change-it-to-something-different/ http://www.mulinazzi.com/if-an-agreement-has-been-reached-on-the-amount-and-duration-of-alimony-can-the-judge-change-it-to-something-different/#comments Mon, 22 Nov 2010 02:20:17 +0000 admin http://www.mulinazzi.com/?p=288 Continue reading for the answer...]]> If an agreement has been reached on the amount and duration of alimony can the judge change it to something different?

ANSWER

If the Agreement is signed by both spouses and both spouses had the opportunity to review the terms with a lawyer before they signed, then it is very unlikely that a Court would change the terms of alimony in the Agreement.

Technically, an Agreement can be overturned if the spouse asking to set it aside can prove that the Agreement was reached by fraud, coercion or extreme duress. Also if the terms of the Agreement are “unconscionably disparate” meaning that the terms of the Agreement leave one both spouse seriously disadvantaged vis-a-vis the other. However, please keep in mind that in order to be successful in undoing an Agreement, you will need to demonstrate an extreme case of the aforementioned conditions before a Judge will substitutes his/her judgment for the terms of the Agreement. In short, everyone going through a divorce is under extreme duress and everyone feels coerced, so your facts will need to be clear and extreme or the Judge will allow you to exercise your freedom to contract and you will have to live with your Agreement.

If you only have an agreement as to alimony and not as to other issues concerning the disposition of marital property, then most states (such as Maryland) have other equitable remedies to adjust any imbalance in the distribution of the marital estate (e.g. unfair alimony amount and duration). In Maryland, your best bet may be to ask the Court for a “monetary award” to adjust this imbalance — assuming you can prove the imbalance of assets/income in court.

]]> http://www.mulinazzi.com/if-an-agreement-has-been-reached-on-the-amount-and-duration-of-alimony-can-the-judge-change-it-to-something-different/feed/ 0 http://www.mulinazzi.com/can-a-correction-be-made-on-a-recent-child-support-order/ http://www.mulinazzi.com/can-a-correction-be-made-on-a-recent-child-support-order/#comments Wed, 17 Nov 2010 04:18:40 +0000 admin http://www.mulinazzi.com/?p=250 Continue reading for the answer...]]> Can a correction be made on a recent child support order?

I recently (1mo. ago) agreed to a child support order. the order divided my medical payment according to how many were on the plan, I obtained this plan so that my child would have Ins.( I am a vet & covered by the VA Ins.not needed) also my current back payments (of child support) were not consideried toward the determination. How do I go about correcting? What’s the process?

ANSWER

The only way to modify your child support amount is to prove that since the entry of the child support order (one month ago) there has been a significant change in circumstances regarding income (either or both parents) or in the child’s expenses.

Any amount you owe on back child support is not considered in the Maryland child support guidelines. The Court can order you to pay up your monthly child support amount plus up to an additional 25% towards your back child support owed. If, on the other hand, you are paying court-ordered child support to another child, then that amount should have been entered as a data point into the child support guidelines.

It sounds like the only option you have is to file a Motion to Reconsider. You have 30 days to do this from the date of the entry of the Court Order. You will need to explain in your Motion that you have discovered some new information (perhaps the insurance information you mentioned) since the Order. However, since you consented to the Order it is highly unlikely that the Court will change the child support.

Finally, be careful what you ask for: the Court could raise your child support if it reconsiders all the information. This is especially the case if you get a new hearing or you file to modify and you show that something has changed in income or expenses. On October 1, 2010 Maryland changed its child support guidelines and for most obligor/paying parents. Accordingly their child support payments would increase if the issue was before the court now.

You can use free child support guidelines at www.dhr.state.md.us or consult a volunteer attorney at the courthouse’s family law assistance project to see if your child support amount would change if the court even considered it.

]]> http://www.mulinazzi.com/can-a-correction-be-made-on-a-recent-child-support-order/feed/ 0 http://www.mulinazzi.com/infedility-merit-sole-custody-of-a-child-through-a-divorce/ http://www.mulinazzi.com/infedility-merit-sole-custody-of-a-child-through-a-divorce/#comments Wed, 17 Nov 2010 04:01:14 +0000 admin http://www.mulinazzi.com/?p=239 Continue reading for the answer...]]> Can infedility merit sole custody of a child through a divorce?

ANSWER

Probably not.

What matters most in custody determinations is the “best interests of the child.” You can argue that infidelity reflects poorly on the parent’s character and you may or may not get a judge who thinks that lesbian infidelity is any more egregious than heterosexual infidelity but in most states there is no difference under the law.

Still, there are many other factors that a Court considers when evaluating the best interests standard. For example, the parent’s demonstrated care of the child and her involvement in the upbringing of the child is probably more demonstrative (than her lesbian affair) of whether or not she is a good physical custodian of the child. A parent’s availability/work schedule is important, the geographic proximity between the parents’ house, which parent is willing to include the other in the child’s life, the physical and emotional health of each parent, et cetera.

A lawyer can explain all the custody factors that a Judge in your jurisdiction would consider and the lawyer can work with you to develop more facts in order to evaluate whether or not sole physical custody is appropriate and in the best interests of your child.

]]> http://www.mulinazzi.com/infedility-merit-sole-custody-of-a-child-through-a-divorce/feed/ 0