Thursday, June 19, 2014

International Child Custody and Child Abduction: Who Are The "Good Guy" and "Bad Guy" Countries? The Most Recent Hague Convention Report

The most recent State Department Report on Compliance with the Hague Convention on the Civil Aspects of International Child Abduction shows that even those countries which have signed off on the Convention do not always comply with it.   Even Western Hemisphere countries, including Costa Rica, Guatemala, and Honduras, are inconsistent in their compliance.  If you're in a dispute over the custody of your children, and the other parent proposes to travel out of the U.S., you should consult an experienced custody attorney in advance;  in this situation, an ounce of prevention may be far less expensive, and better than a ton of cure.  A hat tip to international custody guru Jeremy Morley for the pointer.

Wednesday, June 18, 2014

Consequences of Intentionally Avoiding Support

Buena Park city council member, Sangjin Miller Oh, age 50, was convicted of five counts of perjury by declaration.   Between September 23, 2004 and July 20, 2009, Oh signed official DMV documents using fraudulent information on five separate occasions.  He did this to avoid paying child support to his ex-wife by hiding his assets under a false name.

    Apparently, Oh applied for a driver’s license under a different name, Robert Oh, and failed to disclose that he had previously applied for a license under a different name, as is required by law, he failed to disclose that his license had been suspended in the past, and on four other occasions, he used is fraudulently obtained license to register vehicles.   Oh is also a real estate developer.

    In California, parents have a duty to support their children.  If a judge finds that a parent has intentionally done something to change their income in an effort to reduce or avoid support, there are consequences.   The consequences include imputing income to that parent and calculating support based on what they were making, or should be making.  Additionally, once you have made false representations to a judge, it is difficult to try and regain credibility.  Depending on the circumstances, parties may also have a fiduciary duty to accurately disclose financial information to each other and to update such information if anything changes.  When signing paperwork under the penalty of perjury you are signing it under oath and it is essential that all such information you are signing to is correct.

Friday, June 13, 2014

Child Support Owed to an Incarcerated Parent

    Tracey Richter is serving life in prison in Iowa for the 2001 murder of 20 year old Dustin Wehde.  Richter has been receiving child support arrears payments from her ex-husband, Michael Roberts who began paying back the child support owed after their divorce.  After she had received $2,000 in payments from Roberts, a judge ordered that Richter no longer has any dependents and doesn’t need the money to support herself.  The judge ordered that the funds be garnished and go to pay the $150,000 restitution that Richter owes Wehde’s family.

    Roberts eventually received custody of the their children and moved back to his native Australia.  He still owes approximately $45,000 in child support arrears and $60,000 in property and attorney fees.  This is still owed even if Richter is incarcerated.  Once child support is incurred, then it’s owed and you can’t get rid of the obligation.  It’s non-dischargeable in bankruptcy and becomes a creditor against your estate after your death.  So, just because Richter is in jail for life doesn’t mean that Roberts doesn’t owe the back child support.  The judge made the decision here that the payments that would have gone to Richter because it’s back child support technically owed to her, will go to settle an existing debt she owes, the restitution.

    It also should be noted that Richter currently owes Roberts $20 per month in child support under a separate court order.  This current order doesn’t affect the amount of arrears that Roberts owes since that is already an existing and calculated debt.!Xc2pS       

Monday, June 9, 2014

If You're Going To Get Married, Please Do It Correctly

This new case from New York stands for the (reasonably obvious?)  proposition that if you scrupulously avoid doing any of those things which would cause you to have a valid marriage, then you're not married, even if you have a big elaborate "wedding",  presided over by an internet-ordained "clergyperson", who also fails to do any of those things.

The take-away, for me, is the Court's observation that  "getting married is a serious decision that has wide ranging and often everlasting consequences."   Those who follow this blog have heard me preach, almost incessantly, that folks getting married should treat the decision just this way.  Certainly those who go out of their way to disregard and sidestep both the civil and religious requirements for the process shouldn't generally be allowed to change their minds about their seriousness, even after the big party is over.

The usual hat tip to Howard Friedman at Religion Clause.

Wednesday, June 4, 2014

Child Support for a Non-Biological Child

Brian F., a Minnesota man, signed an affidavit of paternity in 1995, five months after a baby boy was born.  That child is now 19 years old.  Brian was ordered to pay child support and in 2009, the state removed the boy from his mother’s custody and the state asked for an increase of child support from Brian F. to $369 per month.  In 2011, Brian requested the child support be reduced or terminated.  In these proceedings, a genetic test done in 2012 revealed that Brian F. wasn’t the boy’s biological father.

    In June 2012, the court referee recommended that Brian F. not be held responsible for child support payments since he is not the biological father.  On October 29, 2012, Douglas County Nebraska District Judge Peter Battalion set aside the finding of paternity and terminated child support as of the date of the paternity test, May 31, 2012.

    Earlier this month, the Nebraska Supreme Court found that the district court improperly expanded the scope of the action when it took a modification of child support and turned it into an action challenging paternity.  It also found “because Brian was still legally the father under the paternity decree, the district court further erred when it terminated child support based solely on the finding that Brian was not the biological father of the child.”  The case was reversed to Dougas County to address the modification of child support.

    In California, we also use declarations (affidavits) of paternity.   If someone signs one, there is only a certain period of time to contest it.  If it’s not contested, it becomes conclusive as to paternity.  After that time period, the person signing will be unable to request genetic testing.  Part of the responsibilities of being a legal father to a child is the financial responsibility.  Once someone is determined to be the father, he may be liable for child support.  After a determination of paternity has been made, like with Brian F., that obligation may still exist even if it is discovered that the person is not the biological father.