Columnist Sandra Thompson: Child custody changed without mom's notice

A SENIOR JUDGE, brought in to handle the cases of an ailing Family Court judge, last month signed an order changing custody without the knowledge of the custodial parent.

There was no hearing to determine if there was a compelling reason for the change. There was no investigation into why a change was needed and who was the more suitable caretaker.

Because of the children involved, only first names of the parents are being used.

Nicole had primary physical custody of her two sons since her divorce in 1995. Nick, who had visitation two nights per week, is about $1,500 behind in his child support payments, according to Nicole. She says he did not pay the rehabilitative spousal support as ordered in the original divorce decree and only pays the minimal amount -- not the full court-ordered amount -- for her two sons and his son by a previous marriage. Nicole was Nick's third wife.

In September, Nick went to court to amend the original divorce decree and ask for a change in custody. But Nicole never was notified of the action, despite the fact she saw Nick when he brought the boys home from visitation, and despite the fact she has lived in the same house and held the same job for several years.

According to court records, Nicole's former attorney signed a receipt for a copy of the motion on Aug. 28. Yet Nicole says neither the attorney nor his office contacted her or tried to serve her with notice of the action.

A hearing on Nick's motion originally was set for Oct. 5, and Nicole was to respond by Sept. 8. When she didn't, Nick's attorney filed a motion that there be no hearing on the matter and that it go to the judge's chambers. Senior Judge James Brennan, sitting in for Family Court Judge Steve Jones, signed the order Sept. 16.

On Oct. 3, still unaware that this all had taken place, Nicole says Nick showed up at her home, telling her, "You lost everything. You will now start paying me child support, and the kids will now live with me. I've got a court order that says that right here."

Forget the back child support he owes. According to the order, Nicole now must pay Nick child support because he was given primary physical custody.

Brennan's order also modifies just about every other aspect of the divorce decree. It even terminated spousal support that Nick had been ordered to pay, which Nicole says she never received in the first place. Brennan also ordered Nicole to pay Nick's attorney's fees of $1,500.

What's wrong with this picture?

How much effort was made to notify Nicole? Is notifying an attorney who no longer represents a client enough? Why wasn't a notice sent to her home?

Does the court blindly sign orders when the other side "fails" to respond without trying to find out why? Doesn't it seem odd that Nicole would not respond to an action that completely rewrites the divorce decree, not to mention takes away her sons?

Did Brennan read the case history?

Was this an abuse of the system to get out of paying child support as Nicole alleges? Court staffers say it's not uncommon.

This is not the first time Nick and Nicole's case has been in the news. Nick was featured in the Sun's 1997 investigative series on Family Court.

The case was cited as an example of why many of the Family Court rulings are considered inconsistent and, critics say, unfair. Despite five years of income tax records saying that Nick made $31,500 a year, a judge had a hunch he made more, so he ordered him to pay more in child support and rehabilitative alimony.

Nick said that left him with no money for himself. He said at the time that he was stuck in a one-bedroom apartment and couldn't buy beds for his kids, while his ex-wife had a nice home. Nicole says she bought her home two years after the divorce with no help from him.

She was shocked when Nick told her on Oct. 3 to turn over the boys because of the "court order." Although he took the boys, Nicole says they're staying with Nick's elderly parents, while he lives on the other side of town.

It may take a while to sort out the he-said-she-saids. And no one is alleging either parent is unfit to care for the boys. But an obvious mistake has occurred that's legally and morally unacceptable. There should be an immediate hearing to correct it.

Bottom line: Custody should not be changed without the custodial parent's knowledge.

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