Would Pauline Look Like A Selfish Flake In Family Court? One Attorney Weighs In

In a recent post, I wrote about how my lack of child support made my housing situation precarious and that I didn’t know how long I could continue to pay my rent. I also wrote about my need to claim Franny as a dependent exemption (which had previously gone to my ex) so I could get a break on my taxes.

Some commenters felt that my choice not to rent a cheaper apartment — even if it meant sleeping on the floor in a one-bedroom in a sketchy neighborhood — would make me look irresponsible in family court.

One person commented that my second divorce, and subsequent move, would make me seem unstable. This, combined with my choice to go over my budget on an apartment where my children and I could have our own bedrooms, would show a judge that I was less fit than Prince and would perhaps cause me to lose custody.

While I understand people’s concerns that I should have rented the cheapest place possible regardless of  location and number of bedrooms, I still feel that I had very limited options. I live in one of the most expensive cities in the country and I would have to reside in gang cross-fire to find a truly affordable apartment.

But the comments made me wonder: considering that my ex has a lavish lifestyle, and that we live in a city where it isn’t viable for median-income single mothers to support kids without child support, would a judge really find me incompetent?

I wanted to hear from a professional, so I reached out to the attorney with whom I consulted a couple weeks ago. Now a mediator, this attorney used to litigate for one of the most prestigious family law firms where I live.

My questions, and her answers, are below.

Do I Look Selfish Because I Chose To Move My Children To a Three-Bedroom in a Nice Neighborhood Instead of a More Affordable One-Bedroom in a Crappy Neighborhood?

I believe a court would look favorably on your attempts to keep the children in a safe neighborhood.  It is hard to find any place in town with three bedrooms for less than you are paying.  I think the court would be interested in the children enjoying the same lifestyle level as Dad does even when they are staying with Mom.  That is actually the reason for child support. 

I think if you ever got in front of Judge Morgan (not his real name) with proper counsel you would get some child support because he would see through Prince’s set-up (hiding family trust income stream).  I think you have a right to see his tax returns to see what he is making so you can determine whether it is worth it to pursue child support.

You would not lose custody because you chose a three-bedroom apartment in a safe place or even because you chose an apartment you are struggling to pay for.  How you manage your money is not a custody issue.  Period.

How Did I Miss This Clause In My Judgement? My Obligation To Release The Dependent Exemption To Him Ended in 2007!

This is great news.  If the exemption switch in the judgment ended in 2007, the only person who can take the exemption for Franny is you.  Without an order to the contrary or you releasing it to him, only the person who has custody over 50% can claim the exemption.  If I had known this before, I would not have even suggested a stipulation.  You don’t need one.

Does A Second Divorce and Subsequent Move Make Me Seem Like A Lowlife Flake?

Second marriage and divorce and moving related to that is not considered flaky.  It is pretty commonplace in this county.  The important issue is how Franny is doing with all this.  It sounds like you have provided a stable, loving, stimulating environment for her throughout and that is what the court is looking at when evaluating custody.

Is Requesting Prince’s Tax Returns and Income & Expense Declaration Worth Rattling His Cage?

It sounds to me like your concern is that as Franny reaches teenage years and starts fussing with her mother as many of them do, she may express a desire to spend more time with dad.  You think Prince won’t do anything about that as long as you are not demanding anything from him like documents or additional child support.  You are not sure about that, so you want to avoid rattling him at all costs.  The downside of rattling him is losing time with Franny now and child support in 2015 (note: Prince is ordered to pay $500 a month in child support beginning in 2015. Long story).  You would probably not lose the dependent exemption for Franny in such a custody hearing.

What Would Happen If Prince Tried to Get More Custody of Franny?

As a threshold matter the moving party has to show a change of circumstances in order to get a change in custody.  I don’t see that he would be successful in getting a switch in custody since Franny has always spent most of her time with you and she is doing well with that.  Franny is also young enough that her desires to change custody may not hold much weight.  But the court could consider the changes to the two households and Franny getting older to be one if they want to.  Also the courts do seem to have a bias for 50% custody.

How Do I Get What I Want Within My Comfort Zone?

If you want to make your position with Franny more secure before you ask Prince for anything, make sure she gets into a school near you.  Kids prefer being near their school and school friends.  If you take this approach, you may want to wait on requesting his Income and Expense Declaration until next September and in the interim actively advocate for the school near you.  Then by all means at least request the I&E in September 2014 because you have nothing to lose.

Information Is Power

Granted, my attorney’s answers might be different coming from another lawyer, in another state, arguing in front of another judge. But I think her opinions are reasonable and could be useful to others in similar scenarios.

Maybe yours.