Signing a voluntary acknowledgment of paternity is a big deal. Also called a VAP, signing one removes your chance to challenge the paternity of a child with a DNA test. It is a contract, and it can't just be cancelled like a subscription to Netflix. It is important to know this because if you find out later that your woman lied to you, and you're not the baby's father, you've got a tough fight ahead of you.
If you sign a VAP, understand that you only have two years to fight the VAP. And, the only way to overcome the VAP is to hire an attorney, and prove that the contract, the VAP, was signed under duress (a gun held to your head), coercion (she threatened to tell your wife, or your friends something embarassing, and won't do it only if you sign the paper), or fraud (she signed your name on the form, or you can prove she lied to you, without a DNA test).
The VAP has all this information on the bottom of the form. Be sure you understand what you're giving up, and the responsibility that you're taking on before putting your name on a piece of paper that will change your life forever. You have the right to have a DNA test done before signing the form. One can never be too careful.
Showing posts with label court order. Show all posts
Showing posts with label court order. Show all posts
I Want Joint Custody: Clay, Clinton & Marion County, Illinois
Lots of parents get worked up about custody labels. And that concern is completely understandable because it's your child. In fact, clients often start out saying, "I'm not agreeing to anything but sole custody." Most people believe that joint custody means that the parties have equal time with the children, and no one has to pay child support. But that simply isn't true. Custody labels are just that - labels. It is important to have the proper wording to identify and enforce your parental and visitation rights in your custody agreement.
Make no mistake: it is really difficult to understand that a court "awards" custody of YOUR child, the one you helped raise, and love, and protect with all your heart and soul, to either you, the other parent, or to you both, jointly. That concept is tough for anyone to swallow.
But, the truth is this: there are three levels of custody, and they can be mixed and matched.
Sole custody means that one parent has complete control over the children's education, medical treatment, and religion.
Joint custody means that both parents have the decision making power over the children's education, medical treatment, and religion.
Shared custody (rarely awarded) is when two parents live very near to each other, and the child lives equally at both residences. This means that each parent has a complete room, and all the amenities for the child, and that neither party receives child support.
As I said, this is RARELY awarded for two reasons: 1) the parents must be wealthy to afford the same amenities; and 2) the child will constantly be moving, and will never have one place to call home. That sounds great until you have a teenager who constantly "forgets" and leaves school books at the other parents' home, and realizes this, only at 10:00 p.m., when the other parent is likely already in bed. (And, yes, that really happens.)
Keep in mind that the courts can only award what is labeled "joint custody" or "shared custody" if the parents get along and communicate extremely well. If the two of you have filed motions, or testified that you do not get along, and cannot communicate easily, the court is prohibited from labeling your custody agreement "joint custody."
I have a number of clients who want "joint custody" but cannot talk with their ex without a fight. In that instance, there is no joint parenting agreement, but the terms of the "joint parenting" agreement are written into the Marital Settlement Agreement without using that label. In those cases, one parent is labeled the "primary custodial parent," or "residential custodial parent," while the other parent is labeled the "non-custodial parent."
In these instances, the Marital Settlement Agreement will simply state that one parent is the residential custodian or primary custodian, and identify the other parent as the non-custodial parent. This type of agreement contains all the details to address how the parties will share decisions about the child(ren)'s medical care, religious upbringing, and educational needs.
So, remember: it is just a label. So make sure that your Marital Settlement Agreement identifies and protects your legal rights as a parent. The Agreement must include all the details regarding custody and visitation specific to your case. This is very important to help reduce miscommunication (read: arguments) and confusion (read: police called because of fights over who gets the kid) while raising your child(ren) in two separate households.
Lowering Child Support in Marion County & Clinton County, IL
In today's economy, every dollar counts. This is true whether you're paying child support or receiving it. If you lose your job, or have to take a paycut, be certain that you file a Motion to Modify Child Support. This is VERY important if you're paying child support. Otherwise, if you lose your job, and stop making payments, you can be held in contempt for such a failure, and be ordered to pay your ex's attorney's fees.
Draft up a Motion to Modify Child Support, and state the reason why you need the amount lowered - lost job, took a paycut, or are paid by commissions, and the economy has destroyed your income. You need to provide documents, such as a lay-off notice, or show paychecks to show loss of income. If you've applied for unemployment, be prepared to pay out of that unemployment. Or if you're denied unemployment, be sure to provide that letter to the court, too.
But, here's the problem: if you voluntarily left your job to get out of paying child support, that won't get you off the hook. See, the law in Illinois says that you can be required to pay the amount you are ABLE to make. It takes a little effort, but if your former boss testifies that you just quit, or made comments that you want to get fired so your old lady doesn't get any of your money...... Well, let's just say that kind of speech doesn't typically impress judges.
But, definitely be better safe than sorry. If your income decreases, go to the court before the court comes to you.
Draft up a Motion to Modify Child Support, and state the reason why you need the amount lowered - lost job, took a paycut, or are paid by commissions, and the economy has destroyed your income. You need to provide documents, such as a lay-off notice, or show paychecks to show loss of income. If you've applied for unemployment, be prepared to pay out of that unemployment. Or if you're denied unemployment, be sure to provide that letter to the court, too.
But, here's the problem: if you voluntarily left your job to get out of paying child support, that won't get you off the hook. See, the law in Illinois says that you can be required to pay the amount you are ABLE to make. It takes a little effort, but if your former boss testifies that you just quit, or made comments that you want to get fired so your old lady doesn't get any of your money...... Well, let's just say that kind of speech doesn't typically impress judges.
But, definitely be better safe than sorry. If your income decreases, go to the court before the court comes to you.
Modifying A Custody Order Within Two Years: Marion County & Clinton County Illinois
If anyone wants to fight a custody order within two (2) years of its entry, Illinois requires the non-custodial parent to file a Petition to Modify Custody with an Affidavit alleging facts that give the court a "reason to belive" that the present environment seriously endangers the child or children. 750 ILCS 5/610(a).
The process to modify a custody order, even past the two year timeframe, is a battle, a difficult process, like trying to run the 100 yard dash, with hurdles. And, I don't use the term "battle" lightly. The non-custodial parent must not only give the court a reason to believe that the present environment seriously endangers the child or children, but also that a substantial change has occurred since the custody order, and the custodial parent is now unfit to have custody of the children. Department of Public Aid ex rel. Davis v. Brewer, 183 Ill.2d 540 (1998). It's not an easy task, and it's not one to start if you don't follow it through until the end.
The Illinois Supreme Court recently decided that any custody order must be challenged within 30 days of its entry. An Illinois Appellate Court held that a Motion to Reconsider a Custody Order must contain an Affidavit to give the court giving them a "reason to believe" that the present environment seriously endangers the child or children. In Re The Marriage of Marsh, 343 Ill.App.3d 1235 (4th Dist. 2003).
I've never heard of a Fourth Circuit court following this order. But, if they do, this would make it next to impossible to even fight a Motion to Reconsider/Vacate a Custody Order. This decision is only persuasive to the Fifth District, not controlling. That means the Fifth District Appellate Court does not have to follow it. But, the decision is out there, and it's a bad one. These kinds of decisions are why many Illinois divorce & custody attorneys say that you can find an Illinois court decision to support any position you want. Not a good reputation to have. Of course, a good reputation is not something Illinois has had for quite some time.
But, that's another post for another blog. Just remember: attempting to modify a custody order is tough row to hoe, and not for the faint-of-heart.
The process to modify a custody order, even past the two year timeframe, is a battle, a difficult process, like trying to run the 100 yard dash, with hurdles. And, I don't use the term "battle" lightly. The non-custodial parent must not only give the court a reason to believe that the present environment seriously endangers the child or children, but also that a substantial change has occurred since the custody order, and the custodial parent is now unfit to have custody of the children. Department of Public Aid ex rel. Davis v. Brewer, 183 Ill.2d 540 (1998). It's not an easy task, and it's not one to start if you don't follow it through until the end.
The Illinois Supreme Court recently decided that any custody order must be challenged within 30 days of its entry. An Illinois Appellate Court held that a Motion to Reconsider a Custody Order must contain an Affidavit to give the court giving them a "reason to believe" that the present environment seriously endangers the child or children. In Re The Marriage of Marsh, 343 Ill.App.3d 1235 (4th Dist. 2003).
I've never heard of a Fourth Circuit court following this order. But, if they do, this would make it next to impossible to even fight a Motion to Reconsider/Vacate a Custody Order. This decision is only persuasive to the Fifth District, not controlling. That means the Fifth District Appellate Court does not have to follow it. But, the decision is out there, and it's a bad one. These kinds of decisions are why many Illinois divorce & custody attorneys say that you can find an Illinois court decision to support any position you want. Not a good reputation to have. Of course, a good reputation is not something Illinois has had for quite some time.
But, that's another post for another blog. Just remember: attempting to modify a custody order is tough row to hoe, and not for the faint-of-heart.
Hearsay: Marion County & Jefferson County, Illinois
It's something everybody says they know about, but few people understand. The court defines hearsay as an "out of court statement offered for the truth of the matter asserted." What does that mean in plain language? It means that if you testify as to what someone else said, that other person must be available to testify as to what they said.
An example that is used all the time in divorce cases: if you testify about what your child told you about getting hit by your ex, your child will have to tell the judge about being hit. Why? Because you're not wanting the judge to believe you, you're wanting the judge to believe the child was hit. You're offering up a statement, made out of court, for the truth of that statement, i.e., the child was, in fact, hit. So, unless that child is available to testify to being hit, and to be asked questions by the other side, you won't be able to testify that your child was hit by your ex.
This is why lawyers HATE hearsay! This is one of the easiest, yet most difficult things we learn as trial attorneys. And so many lawyers and judges just don't understand the concept. Plus, there is no guarantee that we can convince a judge to understand and allow that testimony.
So, just understand the difficulties. See my earlier post about children testifying in court.
Gays in Texas Denied the Right to Divorce
How frustrating would it be if you wanted a divorce, but the court said, "no"?
Well, that is exactly what is happening to a gay couple who married in Massachusettes but lives in Texas. They filed for a divorce in Texas, and the court refused to grant it because the court said it did not recognize their marriage in the first place.
Think about it generally: how would angry and frustrated would you be if you could NOT get a divorce?
Read the entire story here on Yahoo!
Well, that is exactly what is happening to a gay couple who married in Massachusettes but lives in Texas. They filed for a divorce in Texas, and the court refused to grant it because the court said it did not recognize their marriage in the first place.
Think about it generally: how would angry and frustrated would you be if you could NOT get a divorce?
Read the entire story here on Yahoo!
Clinton County & Marion County, Illinois: Modifying the Custody Order
In Illinois, a custody order cannot be modified for two years after its entry, unless by stipulation of the parties, or an affidavit alleging of serious endangerment to the child. What does this mean? It means that within two years of the order, modification is going to occur only if the parties agree, or if the non-custodial parent can prove to the court that the child is being seriously abused.
A parent will have to prove to the court, by clear and convincing evidence, that the child is subject to severe physical abuse that requires medical attention, severe mental abuse that requires counseling, or sexual abuse. In other words, a parent will need evidence of another witness, such as a police officer, a doctor or counselor to testify or provide a sworn statement that they were witness to the evidence, by pictures, treatment, or statements from the child.
After two years, the modification bcome slightly easier, but only a little. When you attempt to modify a custody order, you will have to prove that the environment in which the child lives is not in the child's best interests, and that your environment is in the child's best interests. Here's why this is difficult: you can't just show you are a better parent. In other words, you have to show that the other parent is unfit, and that you are fit. The courts may not use the word, "unfit," but if you are going to try to modify the order, that is the standard that you want to aim to prove.
If you are going to undertake this battle, (and it will feel like a battle - trust me) you want to make sure that your time, money, and efforts are not wasted on a losing proposition. You have to expect the worst, hope for the best, and prepare for all possible outcomes.
A parent will have to prove to the court, by clear and convincing evidence, that the child is subject to severe physical abuse that requires medical attention, severe mental abuse that requires counseling, or sexual abuse. In other words, a parent will need evidence of another witness, such as a police officer, a doctor or counselor to testify or provide a sworn statement that they were witness to the evidence, by pictures, treatment, or statements from the child.
After two years, the modification bcome slightly easier, but only a little. When you attempt to modify a custody order, you will have to prove that the environment in which the child lives is not in the child's best interests, and that your environment is in the child's best interests. Here's why this is difficult: you can't just show you are a better parent. In other words, you have to show that the other parent is unfit, and that you are fit. The courts may not use the word, "unfit," but if you are going to try to modify the order, that is the standard that you want to aim to prove.
If you are going to undertake this battle, (and it will feel like a battle - trust me) you want to make sure that your time, money, and efforts are not wasted on a losing proposition. You have to expect the worst, hope for the best, and prepare for all possible outcomes.
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