What happens when you cannot make your Chapter 13 payments due to unexpected bills? A furnace goes, or a car breaks down, or you get sick or hurt. What then? There are a number of options. None of them are “Keep this secret from your lawyer!” You can ask for a suspension, or moratorium of payments and catch up by adding months to the end of your plan if your original plan was for less than 60 months, or you can increase the remaining payments if not. You can modify your plan to reduce the dividend to the unsecured creditors or to surrender a now-broken car. You can seek a Chapter 13 hardship discharge or you can convert to Chapter 7. Under the right circumstances, you can even ask permission to borrow additional money. Each alternative has pros and cons which may or may not be appropriate for your situation. But there are options. Do not keep your struggles a secret from your lawyer. There will be a motion to dismiss or motion for relief from stay (to begin foreclosure) soon enough, making the challenge more difficult for your attorney than if you had said something when the troubles began.
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“Never tell people how to do things. Tell them what to
do and they will surprise you with their ingenuity.”George S. Patton Post-Decree Modification of Child Custody
A court is guided by one principle when deciding the issue of child custody. That principle is the best interest of the child. The best interest of the child is determined by examining the child's relationship with the parents and important family members, the child's health and social development, and the child's general well-being. Many experts believe that the best interest of the child requires that one parent have sole custody, subject to the reasonable visitation rights of the noncustodial parent. Other experts believe that it is in the child's best interests to be in the custody of both parents, jointly, to better maintain a good and healthy relationship with each parent. Most courts seem to favor sole custody with visitation rights to the noncustodial parent. However, regardless of the type of custody awarded, a court retains jurisdiction to review the custody award at any time in order to advance the child's best interests. Waiting Period and a Change in Circumstances Many state laws do not permit a change in custody until after a certain time period has elapsed since the entry of the original custody order. The theory is that the initial period of custody should be protected while all parties re-establish their new lives. Most state laws provide an exception to the waiting period when there is a showing that the child's present environment would seriously endanger his mental, physical, moral, or emotional health. Courts will not modify or change custody unless there has been a substantial change in circumstances that materially affects the best interest of the child. Agreed Change of Custody Both the custodial parent and the noncustodial parent may petition the court for a change of custody. If the parties agree to change custody, a court will review the proposed change and the reasons behind it. If the proposed change advances the child's best interest, the court will most likely approve the modification. Modification Standards Each state's laws set out the standards that a petitioner must meet in order to be entitled to a change of custody. Generally, a change of custody may be awarded if events that occurred after the entry of the custody award show that there was a change in the circumstances of the child or his custodian and that modification is necessary to advance the child's best interest. Examples of a changes in circumstances might include evidence that the custodial parent cannot provide adequate supervision for the child, the custodial parent has effectively given up control of the child by allowing the noncustodial parent to make all decisions that affect child, or the child's current environment presents a danger. A joint custody award may be changed to a sole custody award under the same standards. In all cases, the court's finding as to the change in circumstances must be accompanied by a finding that a change in custody would alleviate problems identified. Attorney Fees Attorney's fees may be assessed against a person who petitions for modification if a court finds that the modification proceeding was vexatious and was brought for purposes of harassment. Copyright 2012 LexisNexis, a division of Reed Elsevier Inc. ![]()
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AuthorNanci Rogers Archives
July 2019
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