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Thomas Allen Neil

Thomas Neil’s Answers

650 total

  • What can I do if child support is reevaluating a proposed amount to less than what was initially proposed?

    My child is going to be 8 years old and I submitted a child support case just last year in Sep 2015. I closed the case in the hopes his father would pay the proposed amount. I was wrong and re applied for child support this year June 2016. Now, ch...

    Thomas’s Answer

    The Department of Child support services (DCSS) has thousands of cases laying around its office, and not enough staff. So, normally, it takes DCSS up to six months to get a hearing set. It’s the best they can do. But, there IS a way to speed things up: Write and file with the court a Request for Orders court form, asking for modification of your child support, and simultaneously write and file an Income and Expense Declaration (I&E) court form. Serve both father (or mother as the case may be) or his attorney if he has one, AND also serve the Department of Child Support Services. By bringing your own request for orders hearing, instead of waiting for DCSS to bring THEIR support hearing, DCSS will be "dragged along" to YOUR child support hearing was to be a lot sooner than DC buses hearing. It will take you about a week or to get your papers written and filed in the court, and you should serve father and the DCSS the forms AT LEAST a month before your hearing date. In this way, you can have your support hearing about a month and a half from the day you start. You cannot speed up the child support hearing any faster than that.

    When you write your Income and Expense Declaration, attach 3 recent pay stubs if you have a job. If you can, attach a copy of your latest filed tax returns so that father should have to do the same, and (hopefully) the judge will order father produce his tax returns. Tax returns are important if the other parent suddenly declares low income: The paying parent often takes a month off from work before the hearing to reduce his income and attaches that low income pay stub to their I&E. If you have his recent tax return, you can show that other months they make much more. If you pay for healthcare for yourself or the children, or pay for union dues, mention it on the second page of your I&E.

    At some point, you will receive a copy of the other parent’s Income and Expense Declaration. He/she is required to provide recent pay stubs unless he is unemployed, or a profit and loss statement if he is self-employed. After reading his I&E, if you think the amount of income he declares is less than he actually earns, then the burden is on YOU and DCSS, not the court, to prove he has more income. Just stating to the judge, without proof, that father makes more income will NOT be sufficient. YOU, and DC SS if they have any information, must prove the extra income he makes.

    If father tells the judge he recently lost his job and has no income, then you or DCSS should ask the judge to order father to, "seek work." But, you, MUST, FIRST, prove to the judge that there are jobs available: That means, before the hearing you must look in newspapers or at job hunt websites, and copy, very recent help wanted ads, that father qualifies for, in his neighborhood. At least 15 days before the hearing, have a third party (not you) serve copies of those job ads on both father and DCSS, either personally, or by mail, along with a Proof of Service. File those Proofs of Service with the court, at least three days before the hearing.

    Child support is NOT based only on the amount of time each parent has the children. Child support is equally based upon how much money EACH parent makes, gross (before taxes are taken out of his/her paycheck.) And child support is decided by a mathematical formula. The judge types, on a child support program on his desk, how much each parent makes, plus other factors that affect how much a person makes, and how much time each person has the child. Then, the program displays the amount of child support and the judge must order that amount. The Judge HAS NO LEGAL AUTHORITY to order more, or less, then the amount of support the program calculates.

    It’s easy for a non-lawyer to fail to fill out the forms correctly, or fail to file or serve documents properly. If you cannot afford to hire an attorney then, if you can afford it, hire an attorney for about $600 to just write you child support modification forms and serve the forms for you. Good luck!

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  • Will I loose custody of my children?

    Filing for divorce and child custody. I would like 50/50 with physical custody of my older son who lives with his father and set visitation weekends. My future ex husband is gonna fight for physical custody of both my boys I'm just curious to know...

    Thomas’s Answer

    An attorney cannot begin to guess what a judge might do in you case. To even guess at th outcome, an attorney would need to sit down with you and ask you questions like below. You might ask yourself the same below questions in order to guess what might happen in your case:

    As a start, family courts treat both parents - male or female - as being equally capable of raising the kids, courts attempt to split children's parenting time relatively equally IF POSSIBLE. Then courts look at other factors including, but not limited to:

    1. Courts try to keep siblings together, because it’s hard enough ha their parents are splitting up. But you are talking about having custody of the older child (which would split them up)?

    2. If children are in school, do both parents live in the same school district or both live about the same distance from the school? Judges don’t like kids being driven across town to-from school, in rush hour traffic, because one parent lives away from the school. Driving distances in traffic increases the danger of the child being in an accident and wastes both parents’ time and the child’s time which could be better spent on homework and playing and cleaning up his room. For example, if one parent lives in the Pocket area and the other lives in Natomas, the time with the I5 traffic . . .

    3. Is one parent less available to care for the kids because of their work your school schedules? But courts don’t like punishing a parent for having to work. So, if the other parent hires day care - which both parents must pay for regardless which parent is using daycare - then the court might still give both parents equal time. And if one parent thinks it would b great to no work, and have the children and stay home and receive child support, th court will likely issue him/her “seek work” orders.

    4. Does either parent have anything in their past that affects their fitness to parent such as drug or DUI convictions, child abuse convictions, or Domestic Violence convictions, or current or past unresolved problems with CPS?

    5. Does either parent have a diagnosed physical health or mental health problem that prevents them from parenting, that CAN’T be kept under control by medication?

    6. Does either parent lack a home (meaning not having a deed or lease to a home or apartment. Staying at a friend’s house without a lease is not enough), or a home with too many residents and not enough bedrooms?

    7. The courts also look at which parent is more likely to share the children with th other parent. So, for example, if one parent - for no-good reason - demands primary custody, or no sleep overs at the parent's home, or is caught making false or unsupported allegations against the other parent to keep the child to him/herself, then the court might favor the OTHER parent when deciding how much parenting time to give each parent.

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  • How do I get my ex to stop interfering from my parenting plan

    My ex wife kicked out my 15 year old daughter after a violent fight with her new step dad. Everything improved when she moved in including her attitude, grades, friends, relationships etc. we have 50/50 custody and we are changing the paperwork to...

    Thomas’s Answer

    A court won’t tell a parent they cannot buy things for their daughter, nor order that mom must ask your permission to give gifts as a mom is legally allowed to do, even if you frame it to the court as teaching your child responsibility.

    My colleagues suggest using this as a teaching moment, or teaching your daughter that "things" do not make up for [mom’s] actions. I don’t think my colleagues mean that you should talk to your daughter about the situation or suggest that to your daughter that mom is bad for giving her a car. A mediator or judge may think that is involving the child in the case and see it as you badmouthing the other parent to the child, and may question your parenting if you do that.

    You mentioned changing the paperwork to give 100 percent custody to you. Children have two parents. Parents often have differing parenting styles. And courts strongly avoid taking sides about which parenting method is better. If mom’s giving gifts to your daughter is the ground you are alleging to ask the court for sole custody, then I expect the court will NOT make that order, you will be disappointed, and mom will be gloating.

    What you CAN do, as my colleague suggests, IS ask the court to order co-parenting classes for BOTH of you. Such classes can be useful. But, taking such classes will NOT give you the right to stop mom from making gifts to your daughter.

    I am giving you my advice, for free, based on my 25 years of family court experience, about how a court is likely to rule. And I am warning you of potential pitfalls from the actions you are planning. If you go to a doctor to see if you have cancer, and the doctor tells you “no” because that is what you want to hear, he isn’t helping you

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  • Can I sell my home prior to the court ruling on my divorce in CA?

    I live in San diego and have filed for divorce, have not received a response during the 30 period and have filed for a default. During this time I have also posted a 60 day eviction notice 62 days ago. How can I proceed with the eviction parallel ...

    Thomas’s Answer

    You cannot sell the house and you will be in BIG trouble if you do. Read the back of the Summons (FL110 form) that you served on your spouse which ORDERS you not to sell without your spouse’s consent or a court order. So, try to get a court order allowing you to sell the home by writing a “Request for Orders (RFO),” which is an appointment with a judge and your wife to request th judge allowing you to sell. You file your RFO at your court, and you MUST serve your spouse with your RFO so she knows what the party is about, and the date. The soonest you can normally get into court is about 1.5 months. You can try to get a sooner date on an “ex parte” (emergency) expedited basis, but the judge might not find it an emergency, in which case the judge will set it for a regular hearing in the near future.

    A few things to think about:
    1. If any mortgage payments were paid by money earned in marriage by EITHER of you, or if her name is on the deed, then she has some interest in the house so it may not be “mine” but rather “both of yours.” If it is both yours then an eviction judge may be unwilling to evict her from “her” house.

    2. Your bank or mortgage holder - if any - might be unwilling to let you sell the house to a 3rd party with lesser credit who indeed might not pay. And typical mortgage contracts contain a term that says that, if you do sell the home, then all payments become due immediately. You might want to contact your bank or mortgage holder and ask if they will AGREE to you selling the home to a third party which is called a short sale (but they seldom are done in a “short” and often require long negotiations with the bank or mortgage holder.

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  • What are my rights as a parent to fight the education program because my daughter failed 1 class

    My duaghter who only speaks English (her father is bilingual and speaks in spanish to his friends) was put into an ESL program without my knowledge. I didn't find out until a cpl of years later when i was wondering why her math grade was low. She ...

    Thomas’s Answer

    Your question does not state if there are existing custody orders. If there is a court order giving dad sole legal custody then you have no rights regarding decisions regarding your daughter’s education, and you would have to return to court to change this. But, if no such orders exist, then you have the right to contact their school and discuss your daughter’s education. But you have already done that - spoken with her school. That is all the family law “rights” that apply in you case.

    If you want to know about what rights you have versus her school about language she is taught in regarding then you should place another question on AVVO but place it under “education law,” not family law.

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  • Want to understand what a "joinder" is?

    Ex sent a summons and pleadings to my retirement account. So that I understand, this just "joins" the plan to our divorce and no distribution of the assets will be distributed until there is a QDRO or court order? In other words, the Plan is jus...

    Thomas’s Answer

    Your understanding is correct. Retirement plans don't get involved in the divorce. Let me make joinder more clear. There are two things you must do with retirements plans:

    1. Notify the retirement plan you claim an interest: Because, what happens if your husband (or wife if that is the case) - knowing you are divorcing - goes to his retirement plan and says, "I'm moving to Brazil. I want to cash out all my retirement funds that I am vested in." The plan probably doesn't even know he is married, and probably WILL give him 100% of "his" retirement funds. In fact, Family code section 755 says the plan will NOT get into trouble for giving him all "his" money UNLESS, before he takes his money, you send the plan a simple letter stating that you are his spouse and that you claim some interest in the plan. Your letter must include your spouse's name, some other identifiers for your spouse such as his social security number and date of birth so the plan can easily locate his records. The letter should tell the plan what company your spouse works for (because most retirement plans handle many companies' retirement funds.) And your letter should state your address and phone number so the plan can contact you if necessary. Section 755 says that if you send the plan such a letter then, having had that notice, if the plan does give your spouse some funds that should be yours by marriage then you can sue the plan for that money you were entitled to. Moral: as soon as you know you are divorcing, you should immediately send such a letter to your spouse's retirement plan, otherwise your spouse may soon be flying to Rio with your money and without you.

    2. Join the retirement plan: The retirement plan is holding onto a pot of money - your husband's retirement funds. It's not the retirement plan's money, so the plan doesn't care who it goes to. It just wants to make sure they give the right amount of money to each spouse so that the plan doesn't get sued (see above). So, the plan WANTS to be joined, so that a Judge will ORDER the plan to give X percent of the retirement funds to husband and X percent to wife. In family law cases, to join a retirement plan you must fill out the Judicial Counsel Joinder forms (downloadable from each court's website), serve then on your spouse or his attorney and serve them on the plan, and file the Proof of Service for the joinder forms at the court. Plans WANT to be joined so plans make it easy to serve them. Usually, plans accept service by mail for Joinder forms.

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  • Can I annul a marriage in the state of California if 10 months into the marriage spouse revealed mental issues?

    I've been married for 11 months and my husband woke up one day and said he never wanted to be committed and states he married me to try an conceal his mental issues. He is now diagnosed with PTSD and bipolar disorder, which he claims to have conce...

    Thomas’s Answer

    Family Code section 2210 states, [in relevant part] "A marriage is voidable and may be adjudged a nullity if any of the following conditions existed at the time of the marriage: . . .

    (c) Either party was of unsound mind, unless the party of unsound mind, after coming to reason, freely cohabited with the other as his or her spouse.
    (d) The consent of either party was obtained by fraud, unless the party whose consent was obtained by fraud afterwards, with full knowledge of the facts constituting the fraud, freely cohabited with the other as his or her spouse."

    Before you get too excited about the "unsound mind" verbiage; If a person can treat their symptoms, and work AND not act so crazy as to be picked up and taken away, then a judge would probably NOT find them to be of unsound mind. If everyone suffering those burdens (probably 20% of the population) was of "unsound mind," then our mental hospitals would be swamped. What the above statute IS talking about are people who are so crazy that they are in mental hospitals (and mental hospitals only take patients who are found by a mental health professional to be a danger to themselves or others or literally can't care for themselves) If he is not in a mental hospital a judge would probably not find his PTSD or bipolar disorder as making him of "unsound mind. " And, if he ever was previously in a mental hospital, it sounds like you and he might have "freely cohabited" for some period after that time.

    As to arguing that your marriage was a fraud - that he concealed his disease ; The burden of proof of an allegation (that he concealed his illness) falls on the person who makes the allegation (you). I doubt your husband would come to court and say, "Yes, judge, I am of unsound mind and I concealed my disease during our dating" So, YOU would have to put on evidence of his unsound mind. In court, you could tell the judge about the strange things you have actually seen or heard your husband do or say. But a judge will NOT allow you to testify to the ultimate question - that he is of unsound mind - because (I assume) you are not a mental health professional qualified to make such a diagnosis. So, you would have to bring to court a doctor to testify to that he is of unsound mind,. But a doctor's testimony is very expensive and I doubt a doctor would testify to his being of unsound mind if he is not presently in a mental hospital. And your husband could bring his own doctor to testify he is not of unsound mind..

    Based on the limited facts provided in your question, I do not think you would be successful asking the court to find your marriage to be a nullity. But you can bring a divorce, if you no longer want to be married, and he cannot prevent you from getting the divorce. Good luck !

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  • What can I do ?

    Our current custody arrangement for the summer is every other week. Father has one week, mother has the next week. It goes back and forth until school starts. The week starts from Sunday To Sunday. When school is in session Dad has child the 1st,3...

    Thomas’s Answer

    This lice problem is brought up in court just about every day [often times by a parent who really just wants to remove the child from the other parent but cant find anything bad to say of the other parent so they use lice as an argument off last resort]. But, if you ask a judge to keep the child from the other parent, based on lice, the judge will [correctly] ask how you can say the lice didn't come from your home, or daycare, or a friend's home or somewhere else. And father will almost for sure deny there are lice in his home and he will say the lice must come on your home. Since neither of you can prove where the lice come from [without some lice expert's expensive investigation and testimony] the judge will NOT grant your request and will tell you to get on with life and shampoo your children..

    Dad doesn't want his daughter to have lice either. So, show dad the lice - literally, in your child's hair. DON"T blame him because you really DON'T know it didn't came from your house or somewhere else. And ask dad to help you find the source of the lice. If you both - working together - cant figure out where the lice come from then you politely suggest that you BOTH do all the things recommended by doctors to get rid of lice as described here:

    Specifically: have EVERYONE in BOTH your respective homes use a nit comb and EVERYONE in both your homes wash their hair with over-the-counter medicated shampoos called pediculicides. Each one of you pay for your own shampoos and nit comb. You each may have to repeat this treatment until the problem is fixed.

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  • Is it illegal to not have contact with my sons mother ?

    My sons mother and I can't seem to get along, she had threatened me that she wont have direct contact with me , I told her that is fine with me to contact my wife now . She then went on saying she will not contact her due to it being illegal. Am j...

    Thomas’s Answer

    You have no legal duty to have contact with the other parent. On the other hand it is weird for you to tell her to contact your wife, and that does not reflect well on you, to a judge. I recommend you try to do all communications in writing, and keep them, especially if she writes you that she doesn't want to have contact with you, because such messages from her reflect badly on her and you can attached such written messages from her to your court pleadings in the future. Meanwhile, YOU should always, in your communications with her, put in writing that you leave the door open for communications with her, and thus take the high road, and you can attach such messages to your pleadings in the future to show the judge that you, unlike her, are willing to co-parent.

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  • Can other issues already ordered by the family court be brought up at trial for division of debts?

    Child support, custody and visitation have already been ordered by the Court. We cannot agree on marital debts. If I go to trial, can the respondent bring up other issues other than division of debts (we have no assets) that have already been or...

    Thomas’s Answer

    Child custody and child support orders are NEVER set in stone (they are never final decisions.) They CANNOT be final orders: Because, if, tomorrow, the custodial parent gets alzheimers is the court going to say "the kid must stay with the alzheimers parent because that's what their judgment says?" Of course not, that would endanger the child! In theory, the next day, after you get a custody judgment, you could go back to court and file a new Request For Orders to modify yesterday's orders (but you always have to show a significant change in circumstances to change custody, since the last orders, for the court to even consider your custody modification request) or if you are not loking to change custody but only the parentin schedule you need to have at least a good reason to change the current parenting schedule.

    I do not know if custody is ALSO on the list of issues for your trial (see the court order that set the trial to see what the issues at the trial are). If custody an child support are NOT on the list of issues for the trial then she cannot just walk in and say "I also want to talk about custody and support while we are here." The judge won't alow it. But, regardless, either at this trial if its one of the issues, or at another hearing she sets in the future, she can revisit custody and parenting hours and support. BUT (1) judges seldom take away legal custody, and (2) it's legally much harder to modify custody / parenting schedule orders after initial orders on that subject have been made - she would have to show a very good reason to change the orders. Note: custody is an area where an attorney can often help your case, a lot.

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