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Submitted by DakotaLegal on
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Submitted by DakotaLegal on
Let’s look at several important options, and they are based on what’s best for your children. I start off with an assumption that you are talking about the Ex not following an official court and/or state order for support, and that there is also an existing visitation schedule. Sometimes, though, people talk about purely voluntary agreements and informal (non-court ordered) arrangements…especially when a couple was never married. If you are in this group, and have only an informal arrangement, but need help to actually look at how custody is decided, there’s a good place to start. This is also a place to begin, if you haven’t gotten the State to help collect child support: http://dss.sd.gov/ child support/. You should compare the existing visitation order you have been using, with the general rules and samples of weekend visitation used by courts in South Dakota: http://www.sdjudicial. com/forms/parenting time.aspx.
The other important thing is to be sure you are protecting the child’s best interests. No matter what specific facts exist regarding not meeting the support and visitation order, a court won’t mix the issues of visitation and support obligations. It would be unfair, for example, to stop visitation because a parent falls behind on support…this would be harming the child in two separate ways. If it can be shown you denied or blocked visitation, your Ex may be asking for a new custody order: http://www.docstoc .com/docs/66530072 /Child-Custody-Form-South-Dakota---PDF.
On the other hand, if the reasons the Ex is no longer meeting his obligations, also means there’s a risk to your child(ren) visiting him under the old order, then you might consider going to court for an emergency modification of the old order. Here’s information on getting emergency orders in South Dakota: http://www.sdbar.org/phamphlets/Protection %20Orders.pdf.
- Enforcing The Court Order
You need to look at exactly what the order said. You’ll also need evidence of how the order has not been followed. You can do this in several ways, including a calendar with notes showing the Ex’s failure to show up. You may have receipts for events on the weekends the Ex failed to show. You need to be able to prove not only how the Ex has failed to be there, but also if he has given you any notice, or reasons, for not being there. By the same token, be ready to show you have followed the order. The simpler you can make all this evidence, the better. You might get a witness, who has knowledge of why the Ex not showing.
You have a right to ask for an order of contempt against the Ex: use the late fee forms section… http://www.sdjudicial.com/forms/default.aspx.
Avoid involving your child(ren) in this dispute. By that I mean, don’t get the kids to take sides. Avoid arguments that involve claiming that “the kids say” or that might indicate you are “turning” them against the Ex.
- Excuses To Change Support Payments
There’s every chance your Ex will try to have some reasons for falling behind, or even to ask for a reduction in his child support. Have financial records showing when and how many payments had been made, and what dates they were paid. If you have knowledge that he can meet his obligations, then be ready to prove it.
Even if the Ex succeeds in lowering future payments, you will have claims for legal costs, arrearages, and possibly interest, caused by his failing to follow the order. If you do this on your own, be ready to prove these costs.
- Do You Need Legal Help?
However you first managed to obtain the support and custody orders, you may already have had access to a lawyer. You can go back to that lawyer (if you had one) and they should give you a free consultation. Depending on your income and assets, you may get free help from South Dakota legal aid: http://www.erls.org/ (or call 1-800- 658-2297) or in the alternative (emphasizing aid for Native Americans), here: http://dpls.org/.
Let’s look at several important options, and they are based on what’s best for your children. I start off with an assumption that you are talking about the Ex not following an official court and/or state order for support, and that there is also an existing visitation schedule. Sometimes, though, people talk about purely voluntary agreements and informal (non-court ordered) arrangements…especially when a couple was never married. If you are in this group, and have only an informal arrangement, but need help to actually look at how custody is decided, there’s a good place to start. This is also a place to begin, if you haven’t gotten the State to help collect child support: http://dss.sd.gov/ child support/. You should compare the existing visitation order you have been using, with the general rules and samples of weekend visitation used by courts in South Dakota: http://www.sdjudicial. com/forms/parenting time.aspx.
The other important thing is to be sure you are protecting the child’s best interests. No matter what specific facts exist regarding not meeting the support and visitation order, a court won’t mix the issues of visitation and support obligations. It would be unfair, for example, to stop visitation because a parent falls behind on support…this would be harming the child in two separate ways. If it can be shown you denied or blocked visitation, your Ex may be asking for a new custody order: http://www.docstoc .com/docs/66530072 /Child-Custody-Form-South-Dakota---PDF.
On the other hand, if the reasons the Ex is no longer meeting his obligations, also means there’s a risk to your child(ren) visiting him under the old order, then you might consider going to court for an emergency modification of the old order. Here’s information on getting emergency orders in South Dakota: http://www.sdbar.org/phamphlets/Protection %20Orders.pdf.
You need to look at exactly what the order said. You’ll also need evidence of how the order has not been followed. You can do this in several ways, including a calendar with notes showing the Ex’s failure to show up. You may have receipts for events on the weekends the Ex failed to show. You need to be able to prove not only how the Ex has failed to be there, but also if he has given you any notice, or reasons, for not being there. By the same token, be ready to show you have followed the order. The simpler you can make all this evidence, the better. You might get a witness, who has knowledge of why the Ex not showing.
You have a right to ask for an order of contempt against the Ex: use the late fee forms section… http://www.sdjudicial.com/forms/default.aspx.
Avoid involving your child(ren) in this dispute. By that I mean, don’t get the kids to take sides. Avoid arguments that involve claiming that “the kids say” or that might indicate you are “turning” them against the Ex.
There’s every chance your Ex will try to have some reasons for falling behind, or even to ask for a reduction in his child support. Have financial records showing when and how many payments had been made, and what dates they were paid. If you have knowledge that he can meet his obligations, then be ready to prove it.
Even if the Ex succeeds in lowering future payments, you will have claims for legal costs, arrearages, and possibly interest, caused by his failing to follow the order. If you do this on your own, be ready to prove these costs.
However you first managed to obtain the support and custody orders, you may already have had access to a lawyer. You can go back to that lawyer (if you had one) and they should give you a free consultation. Depending on your income and assets, you may get free help from South Dakota legal aid: http://www.erls.org/ (or call 1-800- 658-2297) or in the alternative (emphasizing aid for Native Americans), here: http://dpls.org/.