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Ask An Attorney

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My husband and I were divorced a few years ago, and I received primary residential responsibility of our two girls, who are now 15 and 16. Over the years, parenting time has varied; however, for the past year they've been spending every other week with their dad. One of my girls has recently expressed that she no longer wants to spend that much time with her dad, and that she would like to be with me the majority of the time. A few days after that occurred my ex contacted me requesting my last year's tax returns saying that he was going to have an attorney look at the current child support calculations to see if they are accurate. I am wondering whether I need to retain an attorney if he is just going to be looking at the child support obligation? My second question is, because the court ordered schedule states that he is only supposed to have parenting time every other weekend, is it okay if my daughter doesn't go every other week like she has been? Since she is 16 is she able to choose what she wants to do?

"We have a number of questions here. First, I'm going to address the child support question because that really seems to be the most pressing issue."

Why is that?

"Well, contrary to what the husband has indicated about wanting her tax returns to simply verify child support, there's no reason for him to request her tax returns if the intention is that the mom retain primary residential responsibility. The North Dakota Child Support Guidelines are clear that the obligor's income, the dad's income in this case, is solely considered for purposes of calculating child support in the case of one parent having primary residential responsibility."

So why would the dad be requesting this information?

"I'm assuming he will be filing for a motion to modify residential responsibility, which I have talked about in a previous segment. Because the mom indicates that they were divorced "a few years ago," I'm guessing it's been more than two years since the judgment was entered. Also, because it seems as though they have had a joint custody arrangement for the past year, it likely will not be difficult for the dad to establish a prima facie case. If he does, there will be a hearing to determine if a modification of residential responsibility should occur.

If their current arrangement, the every other week schedule, is ordered by the court, what affect does that have on the child support obligation?

"If equal residential responsibility is ordered, child support will be calculated according to the North Dakota Child Support Guidelines. How it works is that each parent's income is considered when calculating child support. Basically what that means is that each parent will have a child support obligation for the minor children. So if dad makes more than mom, the obligations will be subtracted and the amount left is known as offset child support. That is what the mom would receive."

What happens if a parent's income changes at some point?

"Each parent has the right to request a review through CSE or to file a motion to modify child support through a private attorney. At that point, once the updated income information is obtained, child support can be recalculated."

What about her question regarding her daughter requesting to spend less time with her dad?

"First of all, I would recommend that at the very least the current judgment be followed. There is not a current court order indicating that the parties have equal residential responsibility. However, I would suggest that it may be best for her to continue to build her relationship with her dad, and it's also likely best that the two sisters have the same schedule with both parents."

What about her preference for staying with her mom?

"This would play into the request for modification of residential responsibility. As always the court will look at what is in the best interests of the children. The preference of a child can be taken into consideration as one of the best interest factors, if the court deems the child is of sufficient intelligence and maturity."

So is there a specific age where the child can decide where he or she wants to live?

"18. Up until then, it's possible the court will consider the preference of the child, and may give reasonable preference more consideration if the child is, for example, 16 and they express mature, valid reasons for wanting to live with one parent over the other. But that is solely in the court's discretion."

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