Joint Custody Preserved Despite Parents’ Objections; Relocation Denied

A father’s attempt to relocate with his son and terminate joint child custody with the mother in Oklahoma fails on appeal.

The Setup

The Father and Mother in Caber v. Dahle originally crafted a joint child custody plan with Father having primary physical custody.  He also had ultimate decision-making authority in the event the parties disagreed concerning the upbringing of their child.  The Court ordered Mother to pay child support.

In May 2009, Father filed for a temporary restraining order based on conditions in Mother’s home.  The trial court granted Father an emergency order for temporary custody of the child, suspending mother’s visitation, and appointing a guardian ad litem (GAL) for the child.  Shortly after, Father filed a motion to terminate the joint child custody plan and award him sole custody.  Mother responded with her own motion to terminate joint custody.  In October 2009, while the applications to terminate were still pending, Father filed a Notice of Relocation.  He wanted to move with the child to Pennsylvania.

The Custody Hearing

The custody evidence focused on the following: injuries suffered by the child while in Mother’s care (mother claimed they were common childhood injuries – DHS investigated and could not confirm any abuse); mother’s frequent changes of residence and roommates (she had her own residence by the time of the hearing), and; drug use in father’s home (his wife, whom he was divorcing, tested positive for marijuana while pregnant – they also had hurt each other during a fight while drinking).

The GAL reported concerns that Father’s actions undermined Mother’s role as a parent.  Also, Father was not relocating for employment reasons.  The GAL recommended that the joint child custody plan remain in place, that Mother not associate with one particular person, and that Father’s request to relocate with the child be denied.  The trial court followed the GAL’s recommendation.  Father appealed.

Father’s appeal claimed the trial court should have terminated the joint child custody plan because the parties could not get along.  Father asserts he should be awarded sole custody because the child would be substantially better off with him.  The appellate court notes that “joint custody requires parents who (1) have an ability to communicate with each other; (2) are mature enough to set aside their own differences; and (3) can work together and engage in joint discussions with each other and make joint decisions regarding the best interest of their child.”  In the appellate court’s view, father’s evidence went to conditions in mother’s home, not to an inability to communicate regarding the child’s best interests.

Father also claimed on appeal he should be allowed to relocate with the child because mother never responded to his notice to relocate.  The appellate court held Father did not have the right to determine by himself where the child lived under either the joint child custody plan, or the temporary restraining order giving him temporary custody.  In the Court’s view, Father voluntarily invoked the Court’s jurisdiction to determine the merits of his relocation request.

Child Support

Father also cited Mother for contempt for failure to pay child support.  Although Mother was ordered to pay just over $200.00 per month, she was only paying $50.00 per month.  Mother testified that she earned approximately $900 per month and that any additional money she has available goes toward her attorney fees and fees for supervised visitation with Child.  The trial court found Mother not guilty of indirect contempt but ordered Mother to pay an arrearage at $75 a month.  The appellate court declined to review the factual determination that Mother’s failure to pay was not willful, so she was not in contempt of court.

by David A. Tracy

Collect Child Support and Alimony from Disability Payments

If your child’s other parent receives Social Security Disability Income (SSDI), your child should receive an auxiliary benefit from Social Security. The auxiliary benefit may not cover monthly child support due you. The disabled parent may owe past due child support. Your former spouse may owe you alimony. You can collect these obligations by income assignment paid directly from the obligor’s disability benefit.

         As a general rule, SSDI payments are exempt from garnishment, attachment or other legal process. This is called an anti-assignment provision. It protects persons on disability from most creditors. But by federal law, the anti-assignment provision does not apply to collection of child support or support alimony. The government does not want parents or former spouses who can pay to allow their exes or children to become public charges.

Each state has a process for withholding up to 65% of a person’s disability income for the payment of child support or support alimony. In Oklahoma, the income withholding notice/order must be signed by a judge or hearing officer. The income assignment must then be filed and served on the office manager at any Social Security District or Branch Office. The addresses and telephone numbers of Social Security District and Branch Offices may be found in the local telephone directory. The income assignment proceeds will be paid to you through your state’s support registry.

It is important to know what type of benefit the disabled parent or former spouse receives. There are two types of Social Security benefits. The first type consists of old-age and disability insurance benefits (SSDI). The second type of Social Security benefit is Supplemental Security Income (SSI). SSI benefits are designed to help aged, blind, and disabled people who have little or no income. It provides cash to meet basic needs for food, clothing, and shelter.

SSDI benefits are funded by Social Security taxes. SSI benefits are funded by general tax revenues. Social Security Disability is considered a substitute for income. SSI is considered a supplement to income based on need. Because of the different purposes of the two types of Social Security, and the different ways the two benefits are funded, SSDI benefits are subject to income withholding, but SSI benefits are not.

By David A. Tracy

42 U.S.C. §407 – Anti-assignment provision for SSDI benefits

42 U.S.C. §659 – Exception for child support and support alimony

42 U.S.C. §666 – Order to withhold income for support shall be provided under state law

Income Withholding Order/Notice Form

Social Security Ruling 79-4 – authorizing collection of child support and alimony from disability income

SSA’s Program Operations Manual System, Section GN02410.200 – Notes SSI payments not subject to garnishment or income withholding

5 CFR Part 581 – Processing Garnishment Orders For Child Support And/Or Alimony