Ex has moved with kids


#1

I understand the frustration, but unfortunately you can not by law withhold child support. Custody/visitation and child support are two separate issues. I would say that if you can not come to some agreement, then an attorney will need to be consulted. If she is not being consistent with visitations, she could be in contempt of the court order. Wish my husband’s ex would move away…[}:)]. Keep us posted and all the best to you.


#2

Is the agreement incorporated into a court order? If yes, you can ask the court to enforce its provisions. If no, the provisions pertaining to custody are, for the most part, unenforceable. You could move for specific performance or allege breach of contract, but in the end the court will set custody (assuming either party so requests) based on its perception of the “best interest” of the children. The custody provisions of the agreement are superseded by the court order.

Be careful with the child support. Of course you can withhold child support. But should you? Under certain conditions you could get hit with attorney fees if the court determines you refused to provide “adequate” support. See N.C.G.S. 50-13.6, ncleg.net/EnactedLegislation … -13.6.html.

In general, courts take a dim view of parents who withhold child support because they’re not receiving all the visitation to which they believe they are entitled. Take a look at Sowers v. Toliver (2002, NC Court of Appeals, aoc.state.nc.us/www/public/c … 0273-1.htm), which holds “The duty to provide financial support is independent of visitation rights and one may not be made contingent upon the other.”

Try to set up new agreement with your husband’s ex. If you can’t come to terms, go to court and have a judge decide custody and support.


#3

Thanks for the replies! I figured that withholding support was a big no-no.

Hopefully she’ll be cooperative…but I’m not counting on it. I figure that we’ll end up in court at some point. Their agreement is a very simple one (signed and notarized by both parties), but never filed with the court. Can we still file it 3 years after the fact?


#4

Here’s what I know. I recently called the county courthouse where my husband’s divorce/custody/child support order was signed due to a separate clause in their agreement about an added amount of money twice a year for clothing. They have both agreed they want this changed but I told him that it would be smarter to file with the court. I was told that anyone can file any agreement with the court at any time but in order to make it enforceable it needs to be filed through an attorney and have a judge sign to make it court order.
I would say that you can still file it, no matter how long after the agreement was made, but if she is not holding up her end of the agreement then you should look into taking it to court. The only down side to this is, Child Support is based on guidelines and if they have agreed to a lesser amount than what the State would require, the child support that your husband pays now could increase. But on the up side, his visitation with his children would be documented with the courts and more action could be taken to ensure that he gets those visits.
If you figure that this will end up in court, document everything. Find copies of checks he has paid for support, medical bills, everything. Document when and how she has violated the terms of the agreement, and visitations (being late or not showing up) If they do not currently have a court order for custody, then the court can not do anything about prior to this, but it would show efforts on your husband’s part to being involved and supporting his children. An attorney would likely ask for these things also.


#5

Last week my husband’s ex moved 1-1/2 hrs away. According to their agreement, she should have informed him BEFORE moving. She did not.

Our issue is with visitation. What are our rights regarding her bringing the children to us, or meeting us 1/2 way? We don’t feel that we should have drive so far to pick them up since it was her decision to move. Also, if necessary, can we withhold child support if she refuses to work out visitation given the new circumstances?

In the past she has been very undependable when pick up/drop off arrangements were made. We feel we need some type of leverage with her to ensure she cooperates.