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Advance Preparation In Custody and Visitation Cases Is Essential

Q: When my wife and I divorced last year, she got the kids and I got visiting privileges

PREPARE IN ADVANCE FOR CUSTODY AND VISITATION DISPUTES

Q: When my wife and I divorced last year, she got the kids and I got visiting privileges. She remarried within two weeks and moved away. My children, a boy and a girl, are miserable. They were taken away from their friends and their school. Their grades are suffering. My ex and the new husband are gone all the time, and the new husband doesn't get along with my kids. At ages 13 and 15, I'm afraid they're getting in with the wrong crowd. I went to a lawyer who told me that I'd have to hire a psychologist to evaluate the children on one of the visits, get guardians appointed for the children, and then it would take a year or more for a resolution. The divorce was financially devastating to me, so I am living with my parents who are willing to help. What do you suggest?

A: Getting the children evaluated is only one step in the process. If children of this age prefer to live with you, if the children are not supervised, if the children's grades have suffered, if the children do not get along with their step-father, and if you have a stable home for them to come back to, although by no means a slam dunk, it appears that you have good reason to bring a suit to change custody.

You may consider hiring a private detective to conduct surveillance during the week, at night, and on the weekends the children stay with your ex to get evidence of a pattern. As a parent, you are entitled to the school records of each child and to visit with their teachers.

The purpose of a psychological evaluation is two-fold: First, to get history from the children about what is going on in their lives and second, to make the psychologist a witness in your case. You cannot say in court what the children told you, but a psychologist who takes history from patients can say what the children told him or her.

If you are considering this move, you must get prepared before you do it. You can never assume that your ex will take this lying down. With summer coming on, now is the best time to act because if you get your proof ready, you might be able to have the children back with you to begin school next fall.

Q: My wife and I were divorced nearly five years ago. She got custody of our two children and I got what I call the "garden variety" of visitation -- every other weekend, half of holidays, and six weeks in the summer. Since she remarried, I have been getting the boys more and more. Her new husband doesn't get along with them. I don't want to get into a custody fight, but I have considered reducing my support payments because of the expanded time I spend with them. What do you think?

A: We think the best way to 1) get taken back to court and 2) lose the extra time with your kids is to reduce your support payments. First, these payments were set by the court and the only way they can be modified is for the court to modify them. If you try to do this on your own, you may find yourself being cited for contempt.

Second, if you go back to court to get a reduction, your ex will certainly ask for an increase. This will probably mean that you will be in court for a long time...and this means time and money, not to mention other problems.

Third, you must consider the situation from the standpoint of seeing your children. Right or wrong, if you use the fact that you are seeing the children more as a reason to reduce support, we bet your access to the children will be reduced to exactly what the divorce decree says.

Fourth, regardless of the time they spend with you, your ex has continuing household expenses that must be paid. She purchases their clothes, maintains a house for them, and takes care of their needs.

We suggest that you not use your pocketbook as your guide. Things are not always fair when it comes to divorce and children. But when you look at the brighter side, you are getting what many fathers don't get -- a good relationship with your children.

Jan Collins Stucker is an award-winning writer and editor. Jan Warner is a matrimonial, elder, and tax attorney. Both are based in Columbia, South Carolina. Flying Solo is seen in newspapers throughout the United States and can be found on the Internet at http://www.flyingsolo.com.

Please e-mail your questions to janwarner@flyingsolo.com or by mail to P.O.Box 11704, Columbia, SC 29211. To receive the American Academy of Matrimonial Lawyers "Divorce Manual," send $7.50 payable to "AAML Fulfillment" to P. O. Box 11704, Columbia, South Carolina 29211, and we'll make sure you receive it.

 



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