Family Law Attorneys in Iowa, Nebraska and South Dakota
Often, it is the children that are at the center of a divorce or other family law battle. At the Klass Law Firm, L.L.P., we offer clients advice and guidance on all types of child support, child custody and other family law matters that pertain to children. To read more about some types of cases, please see the summaries that are linked below or contact our office today by calling 800-613-7989 ext. 242.
- It is ill-advised for a spouse to waive alimony in consideration for a waiver of, or to offset, a child support obligation.
- Parent not entitled to altered visitation during summer months even if they are off work and the child is at the other parent's home unsupervised.
- Overpayment does not result in credit when circumstances of physical custody have changed.
- Parental relationship not terminated despite substance abuse problems.
- Imprisoned father determined to have "abandoned" children; lost parental rights.
- School District not liable for child's fall, even though the child required constant supervision and fell during school hours.
- Lack of cooperation in visitation schedule can be basis for modification of custodial provisions.
- Father's presumptive right of custody must be rebutted by clear and convincing evidence of extraordinary circumstances that would result in serious detriment to the children.
It is ill-advised for a spouse to waive alimony in consideration for a waiver of, or to offset, a child support obligation. The husband earned substantially more than the wife and likely would have been obligated to pay alimony. However, the wife anticipated that the alimony would have been offset by child support so she agreed to waive her right to alimony and he did not seek child support. Even though these were deemed ill advised by the court, the district court approved the reciprocal waivers upon entering the decree. After the divorce the husband lost his job and applied for state benefits. This triggered the state to seek child support from the wife. The state is not bound by the waiver of child support entered into by the husband. Whenever the state is asked to provide support, it is not bound by the decree, however, if the state is not providing support then the parties are bound by the decree.
Parent not entitled to altered visitation during summer months even if they are off work and the child is at the other parent's home unsupervised. Parents were disputing visitation and child support. The father asked for altered visitation during the summer months because he was off work and available to spend time with the child. The court heard testimony and determined that the child was old enough to stay home alone during the mother's working hours. The court determined that because the child was old enough to stay home during the mother's working hours, the father was not entitled to visitation just because he was not working during the day. Until this hearing the father had been voluntarily been paying child support. As a result of this hearing the father was ordered to pay a higher sum of child support. The mother requested that the father be required to pay retroactive support for the difference. The court denied this request because this was the original determination of child support by the court. Additionally, the mother had contributed to the delay in the determination of child support by the court and she was therefore not entitled to retroactive support.
Overpayment does not result in credit when circumstances of physical custody have changed. The parents were awarded shared physical custody in their divorce decree and joint legal custody. The father was ordered to pay $897 per month for child support. The father began to work out of state more and began to pay $1400 per month voluntarily. Later, the court increased the child support to $1823.11 per month. He claimed that he was entitled to a credit because he was, paying ahead to handle the inconsistencies in his employment. He had paid approximately $14,000 in excess of the child support judgment. The court determined that the original support amount was awarded in considering the shared physical custody. Because of the fathers out of state employment the mother now had primary physical care of the children. The court was convinced that the extra payment by the father was to essentially modify the child support in recognition of the increase in the mother's physical care of the children. According to the court, the payments were made in accordance with the changed living situations and there was no equitable consideration that warranted the father being entitled to a credit for the overpayment.
Parental relationship not terminated despite substance abuse problems. Parents of a minor child were caught smoking marijuana in the child's presence and the Department of Health and Human Services was called. Child lived with his father while her mother went through a substance abuse program, at which point she resumed living with his mother. The child was again removed from his home a year later for continued drug use, and the child lived with a family member. The child returned to the care of his mother when she again relapsed, and the child was placed with his grandparents. Between August of 2008 and June of 2011, the mother tested positive for marijuana 17 times. The State ultimately filed a petition to terminate parental rights, and after June of 2011 mother tested positive for drug use another eight times. Witnesses were called and testified that other than her substance abuse, she was a good parent. The petition to terminate the parental relationship was granted, and mother appealed. On appeal, the court was asked to determine if termination was in the child's best interest. The court looked at the closeness of their relationship, and the fact that the child expressed a desire to remain close to his mother. Based on this evidence the Court found that terminating the parental relationship would be detrimental to the child, and the termination order was overturned.
Imprisoned father determined to have "abandoned" children; lost parental rights. Twins were born to Jamie and Holly in April of 2010. Prior to their birth, Holly decided to put the children up for adoption through Bethany Christian Services-a decision Jamie did not agree with. The children were born and Holly signed a release of custody of the children. A few days after the children were born, Jamie failed a drug test, his probation was revoked, and he was sent to prison. Bethany Christian Services moved to terminate Jamie's parental rights. The court stated that Jamie had not "taken prompt action to establish a parental relationship with the children." He made no inquires about their health after birth, he provided no support to Holly during the pregnancy, and had done very little to demonstrate a willingness to assume custody of the children. The Court found that Jamie had abandoned the children, and the decision was upheld on appeal.
No. 1-282 / 10-1731
IN THE INTEREST OF B.B.A.D. and B.B.B.D., Minor Children, J.S., Father, Appellant. http://www.iowacourts.gov/court_of_appeals/Recent_Opinions/20110511/1-282.pdf
School District not liable for child's fall, even though the child required constant supervision and fell during school hours. Mother appeals a jury verdict in favor of defendant School District. Mother brought the claim on behalf of her son, who was handicapped and required a special walker and supervision while at school. Mother argued that her son's fall was foreseeable based on his condition, it was easily preventable, and the jury was required to find that the defendant was negligent because the supervisor was not close enough to her son when the incident occurred. Mother also argued that the court abused its discretion in reading the following jury instruction, "The mere fact an accident occurred or a party was injured does not mean a party was negligent." The Court determined that the jury instruction was an accepted and proper instruction, and the jury could properly find that the School District was not negligent. Decision of the district court was affirmed in favor of the School District.
A Lack of cooperation in visitation schedule can be basis for modification of custodial provisions. The parties' marriage was dissolved in August 2006. In May of 2008, the parties filed cross-petitions for modification of the custodial agreement. To change a custodial provision of a dissolution decree, the applying party is required to establish by a preponderance of the evidence that conditions, since the decree was entered, have so materially and substantially changed that the children's best interests make it expedient to grant the requested change. The court stated that the Mother's rigid attitude towards the implementation of the visitation schedule in the original dissolution decree and subsequent modification, which envisioned some degree of cooperation and flexibility between the parties, was prevalent throughout her testimony. The court determined the Mother's lack of cooperation in communicating with the Father and facilitating his visitation with the children was a substantial change in circumstances necessitating a change in physical care. Father was awarded physical care of the children. In re Marriage of Haynes, 2009 Iowa App. LEXIS 1654 (Iowa Ct. App. Dec. 17, 2009).
Father's presumptive right of custody must be rebutted by clear and convincing evidence of extraordinary circumstances that would result in serious detriment to the children. The parents of the children were unmarried. They had difficulties with their relationship and relied on the maternal grandparents to care for the children. The father claimed that he wanted to see the children more but the grandparents refused to let him see the children. The father and grandparents became involved in a custody dispute. The circuit court granted custody to the maternal grandparents. However, the Supreme Court reversed because there was insufficient evidence to override the father's presumptive right of custody.
Contact an experienced child support, child custody or other family law lawyer at the Klass Law Firm, L.L.P., today to discuss your case and needs. Call 800-613-7989 ext. 242.