Custodial parents swap child with arrears per agreement

[MikeHelp]

• Hi and thank you for the work done on the board here.
  
  I'm working to help two Michigan friends at odds, over a custody issue of a 17 year old son who will graduate in 2006.
  
  The teen has lived with Mom as the sole custodian since the beginning. Dad's visitation has been somewhat regular over the years, but a substantial 30+k arrearage accrued among Mom's desire to support reliable visitation.
  
  At 17, their son has now moved across town wishing to stay with Dad, having Mom's begrudging consent. Dad now wants to abate ordered CS payments, change custody and construct the deal on a written agreement before the courts amicably, (although the two parents are not amicable per se). The mother cares to retain the rights to receive arrears but would consider foregoing ordered payments through 06 graduation, wanting to dovetail future payment of arrears for a 1 to 1 structured payment to their son's desired college tuition over those 4 years. i.e. "Pay the arrears to our son as he goes through collage, toward his degree or default and lump sum me if you do."
  
  Legislature ... http://www.legislature.mi.gov/mileg....619&highlight=
  appears to exact qualification on support order change that could impede the agreement, if I read it correctly. The Dad is also paying ordered support for another non-custodial obligation with a more recent spouse, also potentially noted in legislation.
  
  Can this kind of deal be made, among a court seeing this kind of agreed deferral of arrears over these years? Or is this a wing and a prayer that FOC would entertain in some way?
  
  Thanks for any wisdom that might be here. I know it's not legal advice, but "good will" and much appreciated at that. Thank you.
  
  Mike

[aaron]

I'm not sure what you are asking. It sounds like Dad has a significant arrearage, and wants to get mom to agree to forebear on collecting it until their son is in college, and wants to apply it to their son's college tuitiion. It is not clear if mom agrees with that proposal.

[MikeHelp]

Dad is hoping to qualify receiving custody formally, which will tend to shelter him from due process during the time the minor sun remains in school.

Mom is saying she will dedicate the arrears to son's college, if Dad will qualify contractually to make such structured settlement. Dad's default at time or during college would default breach and bring balance due legally.

A) Can the Michigan courts allow a transfer of custody, give the arrears even being present.

B) Can the courts abide this depth of structured agreement, (under legal counsel design), to equip the custody change to abide in such a future obligation of transfer of the arrears?

Thank you for you're question. Please respond as you are able.

Mike

[MikeHelp]

Among this observation, the Dad receiving custody, CAN claim harship later and force Mom then to pay child support to HIM!! (Even if arrears are in a structured state). Would this calculation of support include Mom's present husband's income in the family, in making an evaluation of income, given the husband is a step father only via their marriag? i.e. No adoption ever was sought.

Mom makes little income at this point and her husband is the primary bread winner, so is the husband exposed to the calculation of support, if Mom came under a support order, following her transfer of custody to Dad?

Thank you again,

Mike

[aaron]

A) Can the Michigan courts allow a transfer of custody, give the arrears even being present.

Support and custody are separate issues. The existence of an arrearage doesn't stop a change of custody found by a judge to be in the best interest of a child, particularly where the parties stipulate to the change.

B) Can the courts abide this depth of structured agreement, (under legal counsel design), to equip the custody change to abide in such a future obligation of transfer of the arrears?

Assuming the arrearage is just between the parties (with none owed to the state), the parties agree to the resolution, and the Friend of the Court approves the order (or the parties opt out of the Friend of the Court system), such an order should be possible.

Among this observation, the Dad receiving custody, CAN claim harship later and force Mom then to pay child support to HIM!! (Even if arrears are in a structured state). Would this calculation of support include Mom's present husband's income in the family, in making an evaluation of income, given the husband is a step father only via their marriag? i.e. No adoption ever was sought.

The stepfather's income is not available.

[MikeHelp]

Thanks Aaron,

Your assessments are correct.

The Dad does have aged maternity costs, processing fees and the like that have accumulated and are being taken from his unemployment, during a time when Mom is not presently receiving child support. Certainly some level of ordered payment would remain around seeing the state balance tendered, for which FOC may advocate a zero state balance, to even approve the deal. I am looking in to that presently.

Mom is presently receiving some general assistance, food program and the like, which means that a considerable amount of Dad's weekly payment, is going toward assistance compensation, before arrears. Apparently, the state is contributing a higher dollar volume to Mom and therefore usperts the CS payment as set-off, witholding her normally received amount, as my guess.

Final question:

I am able to construct the basis of the agreement that the two are looking at and there is reasonable belief on both sides, that they could consolidate their differences in this manner. I'm therefore asking not for legal counsel, but perhaps if there may be an attorney within your circle, that would go over such a contract and put a proper legal face on it, as a paid service, disclaiming legal representation? Church also is able to help some, so this would be a pursuit to limit the cost of constructing the deal, from a bird's eye view. Any suggestions to one that might help, or even a capable para-legal that would assist on fee? I will PM you, with my email address if this can be considered.

Thank you again. I'm impressed at the depth of some of the answers I've seen on the board here, as a whole. Your site truly is a huge blessing for many, as I'm sure you know.

Mike

[aaron]

In what County is all of this occurring?

[MikeHelp]

Location is Ottawa County.

I also sent you an Instant Message where I could share my direct email address if detail needs to be sent there. If you're profile is not set to pop up instant messanges on the board, the link at top, center of the board allows you to access direct messages.

Thank you again,

Mike

[aaron]

You may wish to try the Michigan State Bar's lawyer referral service.

[MikeHelp]

Hi Aaron or whoever else might comment.

I continue in this thread for continuity.

The father, seeking sole custody has been unwilling to negotiate a proper agreement in harmony with the present custodial Mom. Note that son now lives with his Dad and Mom was ammenable to transfer custody.

Among the father demanding sole custody, (presently defaulting to joint custody), among an original order for the child to have visistation with his Dad, reverses, while the court has not ruled to change original custody.

It appears on the face that the father is unable to comply with the terms of sole custody, having a 38k arrears in the middle, another child of different mother he also pays support to and a general nature of contempt for the courts; unwilling to list his current address, (though it is known).

The Mom has continued to file complaints at FOC for parenting time every 14 days. Negotiation has been refused in the open by the Dad. FOC has not taken action as yet in more than six weeks.

Should the mother file a motion for custody change from her original, to Joint and stiplulate her desire for same with requirement for parenting time under FOC? (son is 18 in 6 months).

Can this be done Ex parte, given the Dad's unwillingness to abide, respond or cooperate, (the son and Dad both admit they are witholding visitation to force Mom to convey sole custody. She cannot convey sole custody without the Dad's motions and examination he refuses to provide).

A show cause seems not in order, due that the Dad is non-compliant, but how then can the mother enforce parenting time and make up time on a visitation that is otherwise reversed from the original order and therefore does not exist to enforce?

Past ideas have been beneficial in confirming a refusal to negotiate, so any ideas on the best "next step" for timely? Her son really is not refusing to visit, but more under Dad's harsh demands that his SON force Mom to comply so there is clear and intentional behavior, admitted in the open by the Dad himself.

Thank you sincerely,

Mike