Custoday-again


#1

Why would their father not get custody? Especially if they share custody now. Did you consult an attorney?
I admit I do not recall the specifics of your situation other than the ex wife is not going to be alive much longer. I think that if he concedes that the children should be with their stepfather then it will be easier for a court to rule that he could have custody. I believe that this is something that should be worked out between your husband and the stepfather. If I remember correctly he was not the one pushing for him to retain custody, it was the wife, your husband’s ex. It sounds as though her illness is affecting her actions, emotions and decisions about her children. This sounds like an extremely difficult situation and it also sounds to me that she is grasping at whatever she can.
I don’t believe that you would have your home inspected or your children interviewed. If your husband is following the custody order that you currently have then he would have custody. There should be nothing that the courts have to decide on unless there is a history of abuse, which I don’t believe there was. I don’t know that the stepfather is going to want to spend money for a court battle especially if he is currently paying medical bills. I do not know if it’s possible to talk with him without starting an arguement with her or without her being involved…if it’s possible, I suggest sitting down with him and discussing this situation, because it doesn’t sound as though his ex is able to rationally discuss the children’s future.
I’m terribly sorry that anyone has to go through this. You and your entire family have my sympathies.


#2

Venus,
At the end of it all, it sounds like she is in pain, mentally and probably physically as well, and she’s taking that out on those around her.

If she wants the home inspected and actually thinks that will happen, I would just roll with it. It’s not like anything would come to light except that he’s a good dad and you’re a well-prepared stepmom, so I would tell you to comfort your husband and help him be the “yes-man” for the next few months. Unfortunately, she’ll be gone very soon - too soon to even be a part of any interviews or home inspections - so what does it hurt to say, “well if that will make you feel more comfortable with us taking care of our children, you may arrange it with whatever authorities you need to…” Put the ball in her court to arrange any fantasy interviews or inspections. They won’t happen.

I have found with my ex, that pretty much any conversation that involves yelling or a curseword is a bunch of balogna and more hot air than anything. Let her threaten to have the kids interviewed. Feign compliance and interest in assuaging her fears. Cold-hearted as it may be, she can’t do much from the bed and she won’t be around too much longer to put up a fuss.

In all of this, you’ve never mentioned what the step-father feels about the situation. Where is HIS say and his opinion in the matter? Does he even know what his wife is planning for him?? I agree with poster stepmother - talk to the step-father. After all, he will be the one to either poop or get off the pot once the mother passes away.


#3

The stepfather also will not speak to us. When we call, no one will answer the phone except the children and emails go unanswered. The few conversations held with him have not been good. He claims he wants the girls also. I can’t fault my hubby’s ex for yelling, because if I only had a couple of months to live, I would be angry at the world too. The thing is, if she really only has that long, the illness must be going to take over quickly. They live literally 3 doors away from us and we see her in the yard doing yard work and playing with the children. She drives whenever and whereever she wants, and has better balance than I do! We have no idea how long she has been working with a lawyer about child custody. We are guessing quite some time. I don’t care if they inspect our house–go for it. I’m not crazy about them interviewing my kids, because the oldest is only 8, but if that is necessary, go for it–as long as I or our attorney is present. We know we need an attorney FAST. My husband is trying to get a loan to be able to afford one however. Our last court battle drained us of every penny. Although, as we understand it, in NC, alimony ends with remarriage, he was ordered to continue paying alimony for 3 years–even after she passes away, we have to pay it to her estate. She played the pity card, describing all her surgeries,etc and the judge ruled saying that “In view of Ms. so and so’s illness and her physical state and inability to work, we find her to still be a dependant spouse and order the payment of alimony to continue.” That is with her having been married for 3 1/2 years to her new husband who has a well paying job himself. The alimony battle had begun in 2005. She didn’t find out about the cancer until April 2006, yet her lawyer convinced the judge that we had been dragging out the court case, hoping that she would pass away before a decision was made–and that’s why he ruled that my husband has to continue paying even after she is gone. Since she was able to play the pity card before, we are afraid she will do it again. Also, since she is sick, we didn’t know if there was anyway they could get the courts to move a child custody hearing up to enable her to attend before she becomes physically uncapable of being there. Anyway, we are STILL paying off the legal bills from those 2 years of battling with her and he so afraid we are going to rack up years more of legal bills only to lose the battle. I feel so bad for him.

venus


#4

Venus -
This is only a suggestion and you do not have to follow it but I would suggest that you do not worry about searching for an attorney until you are served with paperwork from her attorney for the step father to gain custody. While this is a terrible situation, step-parents do NOT get custody while a bioligical parent is still alive and supporting the children. That is just not an issue. The only people that have the right to inspect your home or interview your children is DSS and that would only be if there was a question about living conditions or your children’s well-being.
If the step father is also not speaking to you it may be because you have turned down their attempts to “give” him custody and he knows that legally he has no reason to try to gain custody. (I went back and read your previous post).
I would suggest that you do nothing. The courts may have continued alimony but child custody is a different beast. There is no court that I know of that would take custody away from a parent in favor of a stepparent, unless as I said earlier there is no other family living and there is a question of abuse or neglect. If your husband is going to fight for his children then why don’t you wait until you KNOW there’s a reason to fight. With your current finacial issues you could consult an attorney about the custody but I wouldn’t pay a retainer fee until you have are certain you will be going to court.
I still do not believe that there is anything to worry over, unless your husband signs something…


#5

I agree with Stepmother. Be PREPARED to pay for a lawyer, but don’t retain them until there is reason. Threats aren’t reasons. Actual legal paperwork, summons… would be cause to seek legal counsel.

I’m still amazed that alimony can continue POST MORTEM. That’s crazy…especially if she has already been remarried!


#6

One other question–and I view this as very important because I have now had several people tell me that based on this one item, we should just give up. The children are ages 13 and 10. How much weight will the judge give to their preference of where to live? They have said they want to live with their stepfather because “they get more stuff over there” If they tell the judge they prefer the stepfather’s house will he rule based on that?

venus


#7

You shouldn’t give up unless you and your husband have made the decision to “Give” custody to the stepfather.
IF this goes to court, which is unlikely, the children do not get to decide in this any more than they would with both biological parents. Even if this were the parents fighting for custody the children would have to give “valid” reasons such as neglect or abuse, instead of “Dad makes me clean my room so I want to live with Mom”. That just won’t hold any weight in court.
I do not think that the step-father can even file for custody so there would be no reason for the children to be in court to state their preference. I do not believe that a will can override this. Your husband and his ex share custody at the moment, though it sounds as though she has primary. The step-father does not have any custody rights and that should not change. The courts will NOT take custody from him your husband unless there is a history of abuse. If a complaint of abuse is called to DSS, the children would be questioned as could YOUR children, and they may be “inspected” for bruising. Finding of ANY abuse and the children would be put into “the system” until an investigation can be completed. I’m using the instance that the father is the only biological parent living and there is no other family near that can take them in.
If your husband wants to retain custody of his children in the event of the ex’s death then my suggestion is to consult and attorney to see if there are ANY grounds to the ex’s threat and continue on with your life. If the stepfather does attempt to gain any type of custody after the mother passes away then and only then should you concern yourself. I do not know of an attorney that would want to file a claim for custody on these grounds. They are precarious at best.


#8

All of this fighting is for nothing. You need to remove yourself from the conflict. If one biological parent dies, custody automatically goes to the surviving parent. If you push the issue now and someone files an action you may give another party standing to contest custody when that right would not have existed before. I don’t know who told you that your Husband would not automatically get custody, but they are not correct. If the stepfather refuses to turn the children over to him, then he may have to go to court to get physical custody of them, but he will not have a great deal of trouble doing this.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.256.1665 direct fax

10925 David Taylor Drive, Suite 100
Charlotte, North Carolina 28262
704.644.2831 main voice
704.307.4595 main fax

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#9

Thanks so much for responding. All those around us who knew the situation have been giving all kinds of advice and everyone “knows someone that this happened to” so I thought my husband was about to lose his mind trying to figure out what to do. He certainly is relieved that it is not necessary to have to put any of the family through a court battle to get things “settled” up front. The children are having a difficult enough time as it is and don’t need any added stress.

venus


#10

After re-reading your post I saw the part about him being ordered to pay alimony after she dies. Is that specific in the order that he must pay after death? If that is the case then it is not alimony and you may incur some problems if your Husband has been deducting this from his income. If the order does not specify that it must be paid after death, and an alimony order should not, then if she does die, your Husband can file a motion to terminate alimony on that basis. I think your Husband should schedule an initial consultation and get someone to look at the papers. Does he have a court order or an Agreement? Were there any other parties to this action other than your Husband and his ex wife?

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Voice: 704.307.4600
Main Fax: 704.943.0044

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#11

She took my husband to court and argued that he had not lived up to agreements he had made to her (not to the children, but to her) and that as was stated in the separation agreement/divorce decree if he did not live up to those agreements, he would then pay alimony. Of course, he did not start paying alimony because by that time she had married again, which is also why he did not continue to do the things he originally agreed to (pay for her van.) Once she was remarried, he felt it was his responsibility to care for the children and he does, but the new husband’s responsibility to care for his ex. So, she filed suit. It went on forever. When the action started she was apparently perfectly healthy. Nearly a year later, the case is still going on and she finds out she has GBM (cancer). Just before she found that out, it was becoming obvious that the judge was leaning toward the argument of my husband’s attorney–that alimony ends with remarriage and she was not due to receive any $. When she came to court and announced that she was sick and had gone through X numbers of surgery and cried and really put on a show, she played on the judge’s emotions and the decision was made as I listed before, that “based on Mrs. X’s illness, the court STILL finds her to be a dependant spouse, regardless of her remarriage and orders the ex-husband to pay alimony in the amount of X.” Then the statement was made that my husband should have just paid it from the beginning, regardless of the fact that she was remarried and that the court delays were a ploy on our part, hoping she would die before he had to pay anything. (She WAS NOT sick when court action started–as I stated, it was nearly a year into the case that it was discovered). Based on the belief that court was a ploy to hold off until she passed away, the court decision was that what was to be paid was to be considered “past-due alimony”, (arrears???), therefore since it was money that they said was owed her for arrears, he would have to continue paying X amount for the next X years until the full amount had been caught up-even if she passed away it was to be paid to her estate. This was just involving my husband and his ex. No one else was actually involved in the trial. I do know the terminology in the court order says “alimony”, but I do not know if it SPECIFICALLY says to be payed even after death or if it just says to pay for X number of years. I am at work, so I called my husband and asked him to pull the court order tonight so that we could review it to see what it really says.

venus


#12

OK–in short the court order states that "The defendant is in arrears in the amount of XDollars as that amount has accrued and is vested and is not subject to modification. It does acknowledge her remaariage, but also finds that she “continues to be a dependent spouse” Depfendat is to pay plaintif X dollars a month toward arreage owed for alimony until paid in full. All payments thereafter shall be paid to clerk of court."
Oh and it also includes me by stating that “defedant’s wife is employed outside the home and contributes to his support”–so they basically included my income in determinging the amount they felt he could pay. They got our tax records and bank statements along with my husbands pay stubs so they knew how much was his and what was mine, but did not deduct my income in setting the amount. There is also extensive discussion of her medical issues–which although it is a terrible situation, in my opinion should not have been a factor in the alimony case of a woman who had been remarried for 3 years already.
So, no, it does not state “even after death”, but the fact that it is in arrearage I suppose is what determines that it WILL continue to be payed even after death. He did not use that wording in court, but I’m assuming that’s what he meant.
Oh and by the way, the judge who heard the matter was under investigation at the time for corruption and is now under investigation for child abuse! I know that doesn’t change our case, but when someone is under investicatino for fraud or corruption, they should NOT be allowed to sit the bench until cleared and he was NOT at that time. I would absolutely LOVE for another judge to hear this case.

venus


#13

Legally, the judge was correct, the court does not retroactively modify alimony or child support, except from date that a motion to modify was filed. That means that if she dies your Husband must pay until the arrearage has been satisfied. At that point, I believe he could file a motion to terminate alimony.

It sounds to me like the court considered the fact that he had another income to help him pay his expenses at trial when determining alimony. They did not use your income per se, but instead figured for example, if his mortgage was $1,500 per month, he was not responsible for paying that entire cost on his own. I know that probably does not make it any easier to tolerate the situation.

If you believe a Judge has a bias in your particular case, you can request an alternate Judge, however this is not a decision one should make hastily. You should discuss this in depth with your attorney. If your attorney believed it would be a good idea to go this route, they probably would have already suggested it.

Helena M. Nevicosi
Attorney with Rosen Law Firm

4101 Lake Boone Trail, Suite 500
Raleigh, North Carolina 27607
919.787.6668 main phone
919.787.6361 main fax

301 McCullough Drive
Suite 510
Charlotte, NC 28262
Main Voice: 704.307.4600
Main Fax: 704.943.0044

1829 East Franklin Street, Bldg 600
Chapel Hill, NC 27514
919.321.0780 main phone
919.787.6668 main fax

ROSEN.COM

The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service but a full discussion with an attorney should be undertaken before taking any action.


#14

He (the attorney) did suggest it, but my husband really doesn’t want to do that. He just doesn’t feel the need to continue fighting over it, so we are going to muddle through and pay. His one and only concern is making sure he doesn’t lose his kids if/when she does die. As long as that doesn’t happen, and he can continue to raise them as their father, he will be happy.

venus


#15

Well, my husband’s ex FINALLY responded to his emails requesting that they speak about their children’s future. She responded in an hour and a half phone call of cursing, threats and accusations, demanding that he concede that his children would be better off with their step-father. She says she already has a lawyer and for us to get prepared because our home is to be thoroughly inspected and MY children are to be interviewed. She is convinced that they will be able to draw information out of my own children that will prove Kerry and myself unfit to have custody of his girls. By the way-this is all a result of the fact that she has a grade 4 brain tumor and although she has survived a year so far, she has now only been given 2 to 3 months to live. It would seem that my husband would automatically get custody of his own children, but that is not so. So, now we are gonig to have to take out a loan to get a lawyer, but I’m not sure what steps to follow or what the outcome will be. My poor husband is in a terrible state of mind right now. He wants his kids so badly, but he is also so afraid that his ex will play the pity card as she has done in the past-successfully-and the judge will rule in her favor and award custody to the stepfather.

venus