Questions Answered by Shane Michael Oncale

Q: My wife and I were married in Jan of 2017 she has left me in the house in her name took our son and Can I get custody?

1 Answer | Asked in Child Custody and Divorce for Alabama on
Answered on Apr 2, 2019
Shane Michael Oncale's answer
In a custody battle the Court is charged with doing what is in the "best interest" of the child. You most certainly, under the circumstances alleged, have an argument that it would be in your child's best interest to be in your custody. You need to take action sooner rather than later as the issue of who is the "primary care giver" is an important one and with the child out of your custody the mother will definitely be able to establish that fact in her favor. A delay can be costly. Seek...

Q: I have two children with my ex husband; one of whom is soon to be 19. My ex has already expressed his intention of

2 Answers | Asked in Child Support for Alabama on
Answered on Mar 26, 2019
Shane Michael Oncale's answer
If he half his child support he will be in contempt of court. Wait for him to half his payment a couple of times and then file a petition for contempt and to recalculate child support. The Alabama child support case law that allowed for post secondary support was struck down as unconstitutional. When the oldest child turns 19 child support will end altogether and what if anything the father does for the child while seeking post secondary education will be up to him.

Q: My ex husband claims he moved into an apartment but is unwilling to show me either: time stamped photos of the

1 Answer | Asked in Child Custody for Alabama on
Answered on Mar 25, 2019
Shane Michael Oncale's answer
The answer is anytime you violate a court order you can be held in contempt. The real question is WILL you be held in contempt and under the circumstances I think the answer is no. As the primary custodian you have an obligation to protect your child and to act in her best interest. There are certainly other provisions in your agreement/order that have to do with you being kept abreast of his current address etc. Generally you will not be required to send the child with him without any idea...

Q: Two kids same ex wife, 1 will be 19 years old? Can i request stop the child support of the 19th years old in Alabama .

2 Answers | Asked in Child Support and Family Law for Alabama on
Answered on Mar 24, 2019
Shane Michael Oncale's answer
The only way to get out of child support for you child that has aged out is to go back to court and recalculate child support for one child. Unless you can reach a blind agreement with the mother on the amount to be paid and filed an uncontested modification you are going to be in a position where you will have again show proof of income just as she will and the calculation be redone. In fact, even if the mother agreed to take x amount the attorney doing the paperwork for you will have to get...

Q: Can I legally obtain my children from a saftey plan still have my custody nor has judge told me i have lost my rights

1 Answer | Asked in Child Custody for Alabama on
Answered on Mar 21, 2019
Shane Michael Oncale's answer
It is a little hard to tell what is going on by your one sentence statement but generally if you have agreed to a safety plan you can withdraw your agreement at any time and tell DHR you want your children and will not longer abide by the plan. DHR will then have to make a decision as to whether to involve the legal process. You mention a judge. If. your case is in the litigation process there is an Order in place and you need to follow that Order. In any event you should never take any...

Q: If the father is paying child support can the child's mother keep the dad from seeing child?

1 Answer | Asked in Family Law, Child Custody and Child Support for Alabama on
Answered on Mar 21, 2019
Shane Michael Oncale's answer
Father needs to file a petition for custody and visitation. When DHR files a child support case it is for child support and child support only. Custody and visitation are different subjects and unless the father raised them in a pleading, which apparently he did not, then he leaves the courthouse as this father apparently did, with a wage garnishment for child support and nothing else. This tale underscores the importance of hiring an attorney when served with paternity papers seeking child...

Q: Can the mother stop the child support at anytime ?will the father still be liable for arrears and interest?

1 Answer | Asked in Child Support for Alabama on
Answered on Mar 18, 2019
Shane Michael Oncale's answer
Only a court with proper jurisdiction can make any change to child support. No court has the ability even if good cause is shown to forgive child support once the time for its payment has passed. If the payor of child support is in an accident and slips into a coma for a year child support will continue to accrue during that year and if when he is out of the hospital he files a petition with the court to forgive that child support the court will have no authority to do so. You must return to...

Q: Good morning. I was divorced in 2013 our house in was supposed to be sold and monies split. Can I take him to court?

1 Answer | Asked in Constitutional Law, Family Law and Contracts for Alabama on
Answered on Mar 18, 2019
Shane Michael Oncale's answer
Yes. If your ex spouse has failed to follow a provision in your Divorce Decree you can file a petition seeking to have him held in contempt. If successful a finding of contempt will force him to do what he has not done and may entitle you to attorney fees as well. You should get with an attorney as soon as possible to address this issue.

Q: My husband abandoned me and my two children seven years ago, can I file for spousal support and child support? How?

1 Answer | Asked in Family Law for Alabama on
Answered on Mar 10, 2019
Shane Michael Oncale's answer
If your husband has been gone that long you need to file for divorce and in that petition seek alimony and child support. If your children are under the age of 19 and in your care you can still get child support. Depending on the jurisdiction some judges will let you reach back up to 2 years for past child support others will only allow child support from the date of filing forward (this is in the discretion of the trial court). Your alimony claim may also be weakened by the fact that your...

Q: I have a child that is 14 that lives with mother but i was told he takes care of himself and she is never home.

1 Answer | Asked in Child Custody for Alabama on
Answered on Mar 10, 2019
Shane Michael Oncale's answer
You can file a petition seeking custody (but you better have your proof lined up first). You can notify DHR and let them open an investigation.

Q: Can a lawyer order me NOT to take my medication while I have my kids. Antidepressant, heart , blood , & anxiety meds?

1 Answer | Asked in Family Law and Child Custody for Alabama on
Answered on Mar 10, 2019
Shane Michael Oncale's answer
A "lawyer" can't order you to do anything. Only a judge could enter an Order.

Q: My partner took our daughter from our home and moved her to her grandparents with him in another county is this legal

1 Answer | Asked in Child Custody for Alabama on
Answered on Mar 10, 2019
Shane Michael Oncale's answer
You need to file a Petition for Custody with the court. When a child is born both parents are considered to have equal custody rights with an equal right to have the child in their custody and to make decisions for the child. Unless and until a court orders otherwise neither parent has superior rights to the other so "possession" of the child tends to rule the day. Technically, if all that exists is a name of the birth certificate and an affidavit of paternity signed at the hospital, there...

Q: Can I ask the court to continue Cs after the child's 19th birthday to pay for college expense?

1 Answer | Asked in Divorce and Child Support for Alabama on
Answered on Mar 8, 2019
Shane Michael Oncale's answer
You can ask but you won’t be successful unless your husband signed a written agreeement adopted by the court agreeing to pay post secondary education costs. At one time Alabama courts had the right to award such support and regularly did so but the statute giving them that athority was struck down as unconstitutional as it provided a benefit to children of divorce not afforded to children with parent who remained married. The court will still enforce written agreements as any other contract...

Q: My child is 14 and now lives with me. What do I need to do to stop court ordered child support.

1 Answer | Asked in Child Support for Alabama on
Answered on Mar 8, 2019
Shane Michael Oncale's answer
You have to go back to the court that originally awarded custody and child support and modify both. You can't just flip custody between yourselves. The court has to sign off on what is in the best interest of the child. You do not immediately stop owing child support just because the child is living with you either. The court does not have the authority to forgive any child support that accrued before a filing is made with the court. You need to file as soon as possible and keep paying...

Q: What motions should I file to get my son back asap?

2 Answers | Asked in Family Law, Child Custody and Child Support for Alabama on
Answered on Feb 27, 2019
Shane Michael Oncale's answer
First, taking your child and concealing his location from you and cutting off contact is a crime. You should contact local law enforcement and file a report. Based on the information you provide and their investigation they will make a decision as to whether to move forward with prosecution. Second, you should file a Petition for Habeas Corpus seeking an expedited order to have the father produce the child before the court and explain his actions. Obviously these are not things you can...

Q: I have full custody in Colorado of my son. His mother took him to Alabama and is not abiding by custody agreement.

1 Answer | Asked in Family Law and Child Support for Alabama on
Answered on Feb 17, 2019
Shane Michael Oncale's answer
If you have an Order from another state giving you custody of the child and law enforcement will not enforce then you need to hire an attorney to file a Petition for Habeas Corpus in the Alabama jurisdiction where the child is located. Absent an emergency reason that would cause the local judge to block or refuse temporarily to enforce the Order you will leave the courthouse with your child the day of the hearing.

Q: My husband and I are getting divorced.

1 Answer | Asked in Divorce for Alabama on
Answered on Feb 4, 2019
Shane Michael Oncale's answer
The answer to the riddle does not end with who may have owned the home at the time of the marriage. If payments towards the mortgage or towards the improvements or towards the second mortgage which secured the money for the improvements you mention were made with marital funds or created marital debt you may still claim an equitable share in the home. Granted your share is not equal but equitable given the situation. The exact extent of your claim will depend on a large number of variables...

Q: I was emotional before trial and My lawyer agreed and settled so I got nothing after 18 yrs. Now don't return my calls.

1 Answer | Asked in Divorce for Alabama on
Answered on Jan 28, 2019
Shane Michael Oncale's answer
When you agree there are very limited if any grounds to back out of that agreement or to appeal the result which is the judge entering an order adopting your agreement. Time is of the essence. You have 30 days after the decree is entered to ask that any portion be reconsidered. You have 42 days after the entry of the decree to appeal. These dates are concrete so you must seek representation now to make sure a critical deadline is not missed. You thought you were in a deep hole before you...

Q: What are the Alabama laws on support of a disabled child over age 19

1 Answer | Asked in Contracts and Child Support for Alabama on
Answered on Jan 21, 2019
Shane Michael Oncale's answer
Alabama case law provides that child support can be continued if the child is found to have a permanent or ongoing disability. Child support is generally calculated the same as it is for minor children but many parents choose to utilize a Special Needs Trust to insure that the money does not count against the now adult when it comes to government benefits and claw back provisions associated with Medicare. It is also important to note that while child support may still be awarded/continued in...

Q: Ex husban n I have joint custody. He chose to still pay cs. Can he take me 2 court n stop paying cs?

1 Answer | Asked in Child Support for Alabama on
Answered on Jan 19, 2019
Shane Michael Oncale's answer
A change can be made anytime a parent can prove a material change in circumstances. If nothing has changed then no the judge will not consider a modification. On the other hand if there have been material changes in circumstances the judge could consider a change. The joint custody designation does not necessarily mean anything. He agreed to what he is doing and the issue is has there been a material change

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