The Return of the Absent Ex
My friend pulled me aside the other day to ask me a question about one of his coworkers, who I’ll call Jane. Jane is a single mom and has been divorced for almost a decade. Jane’s Ex disappeared after the divorce, never paid child support, and would only rarely reach out to Jane or their son.
It took a lot of work on Jane’s part to create a financially and emotionally stable home for her and her son, but she did it. She made sacrifices, worked extra hours, and spread herself so thin she thought she’d break. Now, out of nowhere, her Ex has reappeared and announced that he wants joint custody and more time with his son. Neither Jane nor her son are happy about this. To make matters worse, her Ex hired a lawyer. So, my friend asks, what should Jane do?
Parenting is a privilege, a legal and emotional privilege and, like many privileges, it can be taken away. Jane’s Ex doesn’t have a right to come back and have joint custody. What he does have is the option to ask the court to reinstate his privilege. Jane has a few issues on her hands here and I’m going to break them down one by one.
Disappearing Parents Create Abandonment And Anxiety Issues For Their Children
First and foremost, Jane’s son needs to see a therapist. He is likely struggling with some very intense and conflicting emotions. Many children feel abandoned and forgotten during a divorce. However, abandonment breeds resentment and anger, and not just at the parent who did the abandoning.
Jane’s son needs emotional tools to deal with yet another significant life event. Additionally, Jane’s Ex will likely make excuses for why he disappeared for so long. The reasons will run the gamut between the honest and accusatory. Deep down, every child wants love and affection from his or her parents. Jane’s son will need help working through why his father left and what their relationship will be like going forward.
Disappearing Parents Must Pay Child Support
Jane likely has a case for retroactive child support. In practice, this means that a judge will calculate the amount of money Jane would have received had her Ex been paying child support. The judge will then order her Ex to pay Jane installment payments for that sum, on top of his regular child support obligation.
Jane’s retroactive child support case can go one of two ways. First, Jane may have had a child support order in place when she and her Ex were divorced, in which case the Ex’s obligation has already been determined and he is obligated to pay back support. Second, Jane may never have had a child support obligation in place. In Illinois, an award of retroactive child support where no child support was ordered is subject to the judge’s discretion. Jane has a compelling story and it would not surprise me if she received some form of retroactive child support.
It almost goes without saying that Jane has a case for prospective child support. She is the residential parent and is incurring all of her son’s expenses. Child support was designed to address this sort of situation.
Can A Parent Reappear And Demand Custody?
Custody really refers to two separate things: legal (physical or residential) custody and decision-making authority. Legal custody is often awarded to the primary caretaker and is rarely disturbed unless it is clearly in the child’s best interests. It goes without saying that Jane is the primary caretaker and that Jane’s Ex has shown a total inability to parent. I don’t think Jane is in any danger of losing residential custody.
I also wouldn’t bet on the Ex getting joint custody, meaning joint decision-making. Importantly, the parents must demonstrate an ability to make joint parenting decisions. A court literally cannot award joint custody if the judge believes that the parties will be unable to co-parent. There is no better evidence that a couple cannot cooperate than one parent disappearing for a decade.
Can A Parent Reappear And Demand Parenting Time?
Odds are Jane’s ex will get some parenting time. Courts are very reluctant to order anything that might harm a parent-child relationship, unless it is necessary for the mental and physical well-being of the child. It is generally in a child’s best interest to have contact with both parents.
So, if a parent shows up and says he or she wants be involved in a child’s life, a court will try hard to facilitate that relationship.
Jane’s attorney should fight for limited parenting time, preferably supervised. There is no real father-son relationship there and a new one must be fostered. It’s not clear how their interactions will play out. It is also not clear if Jane’s Ex would disappear again or try to take their son out of state.
If the parenting time goes well, Jane’s Ex will slowly become more involved in their son’s life. This may prove to be good for everyone involved. However, the court will keep the Ex on a very short leash.
What Are Jane’s Son’s Rights?
Talking about the rights of a minor is always tricky, but Jane’s son can have his interests heard by the court.
He can hire his own attorney, the court can appoint an attorney to represent his best interests, or the court can appoint an attorney to investigate his best interests and issue a report to the court.
In the first scenario, an attorney is advocating for what Jane’s son wants, as described by Jane’s son, just like a regular attorney-client relationship.
In the second scenario, an attorney is advocating for what Jane’s son wants, but based in part on the attorney’s training and experience in similar situations. Jane’s son will have a say, but he will not have ultimate authority over what the attorney says and does in the case.
The third scenario is an attorney conducts an investigation and reports to the court what he or she believes to be in the child’s best interests.
Importantly, the attorney in each of the three scenarios will listen to the son’s wishes and will almost certainly relay them to the court. Equally important is that the parties, meaning Jane and her Ex, will share the cost of the attorney in the second and third scenario.
Jane’s son can also meet with the judge in the judge’s chambers to express his wishes. A court reporter will likely accompany him and he may be joined by Jane’s attorney and her Ex’s attorney.
Ultimately, like everyone else in the case, Jane’s son will have to appeal to the judge to get the parenting schedule he wants. He doesn’t have a “right” to ignore his father, but his unhappiness about seeing him will speak volumes.
Does Jane Need To Hire An Attorney?
No, but it would be a good idea.
First, there are some procedural elements here that Jane would have a hard time looking up. Second, this is a very emotional situation and it may be hard for Jane to maintain her composure throughout the case. This is especially true if any element of the case proceeds to a hearing or trail. Last, hiring an attorney sends a message to the court, namely that the court proceeding in question is important enough to the party to retain a trained professional.
That said, Jane doesn’t need to pay for an attorney. Jane should consider hiring a pro bono attorney. Every state has at least a handful of free legal service providers. Additionally, if Jane has the time or the comfort level, she can explore doing the case pro se, meaning by herself. Many counties have help desks and other pro-se training programs. Call your county courthouse for more information. While it is not Jane’s best approach, it is still a viable option.
Joshua E. Stern is a family law attorney and the managing partner of Stern Perkoski in Evanston, Illinois.
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