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Sean William Travis Smallwood

Sean Smallwood’s Answers

53 total

  • What should I do ?

    Sean’s Answer

    One of the most common types of strategy that the other side and a case like this will take is to try to argue that you are an alienating parent. This is because it is widely known that a parent who unreasonably withholds timesharing from the other parent can very well have their timesharing called into question and have substantial amounts of it taken away.

    For you it may be a good idea to send over some written offers to set up supervised timesharing for him on some limited basis so that he and the child can get to know each other if it has been a long time since he has seen the child. Emails or text messages will normally do well for this. The reason I would suggest sending over written offers to set up visits is because when you ultimately end up in court and he tries to paint you as a alienating parent you can present contrary evidence in the form of your emails or text messages where you attempted to let him see the child.

    Many judges will not necessarily discount his desire to spend time with his child just because at some point in the past he offered to sign over his rights. A lot of times all dad has to say to the judge is that he had a change of heart and wants to know and have a relationship with his kid to have the judge completely ignore any past offers to sign over rights.

    If he is calling you often and sending police to your house then he is probably building a case against you to make you look like in alienating parent the problem with that could ultimately be that the judge gives him more court ordered visitation then you are happy with. One saying that many family attorneys will use is that the parent who is willing to give the most is the one who ends up getting ordered the most time with the kids. While that does not apply across the board and every single case it is something that is important to keep in the back of your mind when you are making decisions related to voluntary visits

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  • Is there an immediate way, as early as tomorrow, for my daughter to not be required to visit with her dad? how do i help her?

    Sean’s Answer

    If you permit your daughter to stay with you and not go to her dads house then you would technically be in violation of your court ordered time sharing plan. My colleague above is correct in stating that even an emergency motion may not be heard and ruled on fast enough to stop the next visit.

    You are probably going to need to file a supplemental petition for modification of time sharing and if you feel that the situation over at the dads house is bad enough you your best bet may be to file a motion for appointment of what is called a guardian ad litem who is a third-party usually an attorney who is assigned to the case by the judge and conducts an intensive investigation into both households and makes recommendations to the judge as to a recommended modified parenting plan.

    The good thing strategically for you about using a guardian at Leitem is that the Guardian can speak to the child and really get a good feel for how scared the child is and if it is extreme the Guardian may recommend to the court that dad's timesharing be limited or make other recommendations to try to remedy the situation. One thing to be weary of is that if the Guardian senses that you are trying to unreasonably restrict dads access to the child then the Guardian could actually turn on you so you have to be super careful not to say or do anything that could make you look like an alienating parent.

    The unfortunate thing about the Guardian is that they normally add substantial cost to the litigation but based off the information you've provided above I think that's going to be your best bet because you're not going to have a lot of hard evidence of his treatment of your daughter unless you have a third-party professional trusted by the court who can testify as to the effect that it may be having on her.

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  • Can I sue for back child support now?

    Sean’s Answer

    Yes you can certainly go after any delinquent child support that is owed however it is important to keep in mind that enforcing child-support can sometimes be a tedious, time-consuming, and stressful process.

    The court has a lot of enforcement Powers at its disposal when it comes to enforcing child support. First they will normally go after the dad's drivers license by suspending that. Next you will see them start taking away his tax returns and giving them to you and suspending any professional licenses he may have in addition to freezing his passport.

    The next step in the enforcement process can be for a judge to freeze/Leavy any bank accounts that he might have that have any money in them for purposes of child-support payments.

    Finally you will see courts issuing what's called a writ of bodily attachment which is essentially a civil arrest warrant which would cause him to sit in jail until he can come up with a lump sum payment toward the child support arrearages.

    Of course you would have to file motions specifically asking for these things to take place.

    Procedurally if your case is in Florida then you would file a motion for contempt in the same jurisdiction under the same case number as your original child support order. The only hiccup that you might run into is that enforcement powers are always stronger in the state where the dad resides. This is because Florida can only suspend a Florida drivers license and can only issue a warrant for arrest if the dad is with in Florida's borders.

    If you know what state he's living in you may want to hire a private attorney have them register the Florida judgment with the clerk of court in the jurisdiction where dad lives and file a motion for contempt or petition for enforcement there.

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  • How will I know when my ex has responded to my Supplemental Motion to Modify Child Support?

    Sean’s Answer

    I agree with my two colleagues who answered this question before me but I want to take it a step further because I'm assuming that if you have questions about finding out if he's filed an answer then you may also have questions about what to do if he does not respond within the 20 day time limit.

    Properly handling child-support petitions that are not responded to by the other side is a delicate art that not a lot of people get right the first time.

    The first thing you'll need to do is ,in most jurisdictions, file a motion for default and follow up with The clerk of court to ensure that they have received it and that they are processing the default. Once you receive the clerks stamped default you or your lawyer should file what's called a request for judicial notice of median income pursuant to the United States Census Bureau. As an attachment to your request for judicial notice you can normally find a readout of the Census Bureau's estimated median income for the geographical area or city that your ex lives in on the census bureau's website.

    This will permit you to go into a final hearing on a default and ask the judge to impute income to your ex that is equal to the median income for his city as recorded by the Census Bureau since he will not have filed a financial affidavit or submitted any verification of what his income is.

    The next thing you will do is contact the judicial assistant for the judge or magistrate that is over your case and obtain available dates and times for a default final hearing. Just make sure that your request for judicial notice is filed a month or so before your final hearing date.

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  • Does my ex have to fight me in Florida court?

    Sean’s Answer

    This is a very good question. As my colleague below mentioned typically the state that issues the custody order will retain jurisdiction to make any future orders that are necessary. If that is the case then any litigation would need to be initiated in the original state where your final judgment was entered.

    While it is true that whatever state a child resides in for six months or more becomes the home state for jurisdictional purposes that applies mainly in cases where there is not already a final judgment in place or when enough time has passed that the original state becomes an inconvenient forum meaning that the witnesses, evidence, or parties to the case are no longer reasonably available in the original state that issued the final judgment. In those cases you see jurisdiction being relinquished by the original state and taken on by the new state which in this case will be Florida.

    From the wording of your question I'm getting the feeling that your ex May come in and try to argue that you are in some way shape or form alienating him from the kids in the case. You want to be cautious if you are not permitting timesharing because Family Court judges will generally crackdown aggressively on any parent who is unreasonably limiting visitation to the other parent.

    While I do not know for sure due to the limited information in your question I am just throwing this out there that if you had a custody order in Illinois and you relocated with the children to Florida without first getting either a signed agreement from your ex or a court order permitting you to relocate to Florida with the children then you may find yourself in some hot water. I would contact an Illinois attorney immediately and let them take a look at your final judgment. If you have not moved down here with court permission then they may need to file a petition to relocate subsequent to the move on your behalf.

    Again your biggest enemy in the litigation could be allegations from your ex that you may be unreasonably keeping him away from his kids. I wrote a very detailed legal guide on this topic which is accessible through my profile here on avvo.

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  • Can my wife take my son out of state without my approval?

    Sean’s Answer

    I normally have issues with the other parent taking children out-of-state without something in writing guaranteeing that they will return. Of course this is dependent on whether or not you guys already have a court ordered parenting plan in place. If for some reason there is no parenting plan that is signed by a judge, final judgment of dissolution, or final judgment of paternity in place then I would have concerns about her unilaterally making travel arrangements out of state with any of the kids until there is some written guarantee that she has to bring them back.

    If however you guys do have a court ordered custody arrangement in place and she is just making plans without your permission then you will want to review the provisions of your parenting plan that relate to out-of-state travel with the children. Typically on court ordered parenting plans there will be some sort of prior notice requirement for out-of-state travel. If she is violating the court ordered parenting plan provision then A motion for enforcement or contempt may be appropriate. Sometimes just the threat of such emotion will be enough to get the other parent in line.

    Something you need to be aware of however is that the statutory factors for best interest of the children are used by some judges when applied to holiday plans by each parent. What I mean here is that if your ex is trying to take him to visit his dying grandmother in New York and you want to deny them travel because of an extracurricular rehearsal. In that hypothetical situation a judge would probably find it was more important for your son to go see his ailing family member. One of the most important statutory factors for best interest of the children is a parents ability to recognize the needs of the child and put those needs ahead of their own wants or needs. So when you're deciding whether or not to permit travel you want to keep that in mind to make sure that you never end up on the bad side of a argument in court.

    If you guys do not already have a parenting plan in place and you are operating on some sort of verbal custody agreement then I recommend that if you are absolutely positive that there is no way that you guys are ever getting back together then somebody needs to file some sort of petition with the court to get a court ordered parenting plan put in place. If the kids are residing with you right now that will be your best bet to protect the status quo and make sure that she does not try to snatch the kids in an effort to get majority time sharing.

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  • Is filing an abatement for support the way to go? If so, what key documents should I file with the motion?

    Sean’s Answer

    These are issues that we see on a very regular basis with Department of revenue cases and whoever recommended that you file for an abatement is on the right track. The key is to make sure that you file the correct title of motion, that it's filed with this with the court in the jurisdiction where your case is, and in many jurisdictions you also need to provide a copy of your motion to the hearing officers assistant.

    You will want to then take steps to secure hearing time. Most of the time this was done by contacting the child support hearing officers assistant to find out when the motion can be set for a hearing. One good thing about DOR cases is that usually the department will take care of sending out a notice of hearing to all parties so that is one less thing that you would typically need to take care of. When you're getting ready for the hearing be sure and bring any recent documents that you have from your doctor that detail your injuries or disabilities and most importantly anything that you have from your doctor stating that your ability to work is limited. Bring three copies of each document to your hearing.

    It's important to remember that it is not a given that they will abate your support the hearing officer will look at different factors including the extent and severity of your disability, the type of work you usually performed in the past and whether you could still do that now, your payment history before the injury occurred, and how much total arrearages you may have up to this point. The reason that they will be looking at these factors with scrutiny is because they are always cautious to ensure that you are not just playing games to avoid paying child support. Most of the time though if you go in with your documentation, have properly filed the right motion, and have set it for hearing and if the court finds your injury or disability is serious enough they can enter an order temporarily abating the support.

    Another more realistic option that you have is to file a motion asking the department to temporarily suspend enforcement of your child support while you're not able to work or until you are able to secure disability benefits. The hearing officers are much more open-minded to temporarily suspending enforcement then they are to a outing right abatement of support. If they temporarily suspend enforcement this means that they will not file motions for contempt against you for nonpayment, will not suspend your drivers license during that time, and may even be willing to reinstate your suspended drivers license at that hearing if you also ask for that in your motion. Of course you may not like this option very much because child-support will still be adding up to your arrearage pile but this option would have a greater chance of success at hearing.

    You also want to be aggressively working toward getting that disability payment going in once it does you want to talk to your disability provider about getting an auxiliary benefit going to your children. When this happens it does not affect your payment that you received but it does send a separate payment to any minor children of yours which the Department of revenue will give you a credit against your child support. This means that if you owe $500 a month in child support and Social Security pays an auxiliary benefit to your children of $450 a month then the Department of revenue will only charge you $50 a month for child support to make up the difference. Of course you would have to file a proper motion, set a hearing, and ask them to rearrange your support obligation once the auxiliary payments start going to the children. But that could be huge for your case if you can get that going.

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  • What could or will happen if she doesn't show up for the hearing and what could happen if she does show up ?

    Sean’s Answer

    I have to agree with the first attorney answer you need a lawyer Asap who knows how to use strategy in these cases. You probably should have filed for divorce or paternity, depending on your marital status, the moment she left you with the kids. My thought is that if you still have the kids then you want to file for custody and not for just child support. If she hasn't yet she may try to snatch the kids from you very soon as the child support issue moves forward.

    You want to have either a divorce or paternity case filed and served on her which is the only way for you to ensure that she does not try to remove the kids from the jurisdiction and stick you with child support. Do not put off calling an attorney for one more minute my friend. Find someone who offers payment plans of you have to.

    Is she has snatched the kids then she can miss a hearing for child support especially if it is DOR because they will ask who has the kids and if she has them they will simply deny your request for support and tell you to hire an attorney and file for custody as DOR has no authority to even discuss custody issues.

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  • Do I need an Attorney for a Child Support Modification hearing?

    Sean’s Answer

    Having an attorney is always recommended but you will want to consult with someone who knows the difference between DOR cases and circuit court cases. It sounds like your case may be a DOR one meaning it will be in front of a child support hearing officer and your ex will be represented by a DOR attorney. If that is the case then I would recommend hiring someone even more.

    The fact that they used minimum wage for your income back when the previous order was entered means that if you are making substantially more now your child support could go up.

    You want to be very careful about just going down to the child support office and asking them for a modification because they will hand you a piece of paper and tell you that it's a modification document when in reality all it is is a request for a support order review. That is simply you asking the department to review your file to see if you qualify for a modification. The majority of these are denied without any notice to you whatsoever. It does not count as a modification and it does not protect you in any way shape or form.

    A true modification is a petition that you will have to fill out, sign with a notary, file with the clerk of court while paying a $50 reopening fee and will need to have served on the opposing party by a process server after having a summons issued by the clerk of court. If anyone tells you to do less than that to get a modification then you may want to seek advice from an attorney.

    My recommendation would be to go to a free Florida child support calculator somewhere on the web and calculate what your child support would be under your current income if you filed for modification. You want to do this before you file anything to make sure that your not setting yourself up for a higher payment

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  • Still paying child support and daughter will be 20 in march 2016... Help!

    Sean’s Answer

    • Selected as best answer

    Hi your question brings up some interesting points in child-support law that not a lot of people are aware of. From the sounds of it your original child support order must have been an old one from before the courts started requiring a stairstep adjustment as kids aged out of the system. This means that if you did not take any proactive steps you could theoretically continue paying child support child was 30.

    To fix that problem these days any child support order that is for more than one child is required to include the dates that the support for older children stops and the amount that the support order will automatically drop down to when that happens. So when you go in to court to get this resolved you will end up with an updated income withholding order that will expire at a certain time.

    The person who told you to get a modification is on the right track. Just make sure that you know before you speak to an attorney whether your case is a Department of revenue case or if it's a Circuit Court case as this will usually make a big difference in how much of a retainer an experienced attorney will charge you.

    The only other thing that you'll need to watch out for is regarding your arrearages this is because the state is allowed to continue charging you the same amount of child support they do now each month but just counting the portion that would have gone to your older child toward arrearages. It sounds like from the way you wrote your question that is kind of what you're hoping to do but that catches a lot of people off guard and so I wanted to throw it out there.

    I hope this answer has been helpful to you. If it has please check the "helpful" option and if you thought this was the best answer then please let me know by selecting "best answer" thanks!

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