How old is your niece?

Not trying to be rude, but what difference does it make what he said in a counselor's office???

I mean really.. if he said he would see her EVERY weekend and then didn't, he still isn't seeing the child. If he has an order that says he has shared custody but doesn't exercise it, then the court should hear testimony about what the actual time spent with the child is.

I'm in CA so depending on your state or laws, things may be different, but when you go to court, the first step is filing moving papers. In your moving papers, it should state that you want support based on the 'actual' time spent with the child because it's different than the written order. If she has 100%, even if he has a weekend here and there, it wouldn't make much difference in the guideline calculation unless he had every other weekend which is like 10-20%.

If he blurted out no to visits in counseling, it was probably because he was upset and he didn't mean it... because you say he immediately started back pedaling. He was probably angry at your sister and didn't think about what he said before he said it. If your sister is encouraging her daughter to not see her father, she is doing the child a great disservice. Both parents sound like they are off... I agree with dumb asses.

His attorney can say that mom is not enforcing the shared custody... but neither is dad! If someone told me I can't see my child, I would be in court demanding to see my child. He wants to push responsibility for why he doesn't see his child on her??? Even if she makes it difficult, it's not a reason to stop trying, IT'S HIS CHILD! and that would be my angle. She would come out looking much better if she can show how she tries to get him to see the child, offers up plenty of time and he just won't do it... he's too busy with his new family and such. But if that's not the case and he can show that SHE won't let him see her or SHE makes it difficult, the court may punish her by using the shared time, even if he isn't exercising it... because then it isn't HIS fault he doesn't see his child, it's hers.

I'm just making a lot of assumptions and I may be wrong about details but those are the different perspectives to think about. There are two sides and each has their own 'truth' and agenda and the court has to decide based on the objective facts. But, I'm not an attorney and nobody can tell what will happen in court or what any particular judge may rule.

She is 17.

What was said in the counselor's office matters because he is going to argue that he should still have joint custody (and not pay support) and that his failure to see her is because she and her mother decided without his input to cut him out. Instead, he said in front of 3 people (my sister, my niece and the counselor) that she should live with her mother and that he didn't even want her to sleep over his house occasionally. His new wife thinks she is a bad influence and harmful to their baby.

If he regretted what he said he should have apologized and taken it back, like an adult. He never did.

My sister is not speaking to her X. They haven't spoken a word in almost a year (they were still good friends before all this happened). My sister encourages my niece to call her father and try to visit him. But like she says, you can't force a 17 yo to do anything. My sister always encouraged (even forced) my niece to split time between houses. It only stopped after my niece started having mental issues from it (depression, medical issues from stress) and they went to counseling and he agreed to stop the split time. He only backpedaled on the "no you can't stay at my house ever", not the part about her mother having custody. And he only backpedaled when he saw the extreme reaction it caused (the counselor was actually crying, I can't imagine that is typical). The counselor basically told my sister that her X doesn't have a grip on reality, is narcisistic, etc. (too much pot over the years, IMO).

Basically, my niece is a puppy. They are cute and cuddly then they are little. But they turn into dogs who chew your shoes and bark sometimes. He's one of those people that brings dogs to the pound because they didn't realize the puppy would turn into a dog. She is a typical, sometimes PITA teenager. I knew him when he was a PITA teenager. Believe me, he was worse than her.

And yes, I'm bitter. Can you tell?

With a 17 year old, the judge is likely goint to listen to her. I would hope most judges would consider not only what X said, but how she felt about it. He should still owe CS, if determined by state formula. Is your state one that will enforce CS after age 17, or pay for college?

With respect to whether or not the counselor could testify in court...who was the identified patient? If it was your sister, she could give her permission to/release the counselor from the required confidentiality agreement; however, if your XBIL was the identified patient, he would have to grant that permission, and I doubt he would. If your niece is the identified patient, well...she is legally still a minor, therefore the parent(s) would have to grant permission for the records to be released. Since legally they still have joint custody & it was a "family" session, I would imagine your XBIL would have to agree...again, I doubt he would do that. The counselor could get herself into a world of hurt (meaning your XBIL could bring an ethics complaint against her) if she were to testify in court without his permission. The only time a therapist is compelled to testify or bring a record is under a court order from a judge. A subpoena won't do...a therapist can get their hind-end sued if they do that...the law varies some from state to state but there is an entire body of case law on this and generally the state legislatures are aware of the various court decisions from state to state and take these rulings into account when drafting legislation. For example, there was a famous case in California that resulted in the "Tarasoff" rule and virtually every state in the union addresses this issue in the law, i.e., if a client makes a threat of physical harm against an identifiable person, the therapist is bound by law to warn that person of the potential threat of harm. It is known as "duty to warn." There is similar case law that has been codifed with respect to records and confidentiality...if the counselor in your case testifies without an order from the court, she may be opening herself up to substantial liability. She really should check with folks at her state licensing board before she does anything....she could testify for your sister, get sued by your XBIL and ultimately end up hurting your sister's and your niece's position.

By the way, I would worry about a counselor who is unable to maintain professional distance and cries in the session. It is possible to be fully empathic with respect for someone's pain while still managing to not feel that pain as your own...professional boundaries are incredibly important therapeutically in the counseling process...her tears would be a red flag to me...

Hopefully, KKNY is correct in her response, that at 17 y/o, a judge would simply listen to and respect your niece's wishes in the matter. Good luck to them.

I think it is a little more complicated -- the judge should hopefully take into account why a child wants to spend more time with one parent -- but I would hope a judge would understand forcing a 17 yo isnt easy.

It was family counseling. I don't know who the identified patient was. I was wondering if there was no confidentiality because it's not private. I know the counselor can't testify, but I always thought other people being counseled could.

The next hearing is for child support, not custody. My niece will not be going. My sister really hopes she won't have to be dragged into this. She wants to live with her mother but she doesn't want to hurt her father's feelings either (she has told my sister this). If only he was as concerned about her feelings as she is about his. I've known this guy for close to 20 years, he is a class A bum. He makes good money but thinks he should determine how much he can "afford" to pay. Which is about 1/3 of the state formula amount (for example, he claims he spends $325 a week on food). He knows my sister is basically non-confrontational and he's been expecting she would never actually go to court. It came to a head when my father said no more hand outs from him unless she at least attempts to get the "father" to pay.

Sue,

If your dad really wants to help, he should, if he hasnt done so already, get your sister a lawyer. Unfortunately, this may be too late. First, find out if your sister's state provides for child support after age 18 and/or college expenses. Here is a website she may want to look at.

http://divorcesupport.about.com/od/childsupportresources/a/childsupportcol_2.htm

But she should double and triple check this, laws change, etc.

A court will generally not order back child support -- if sisters X owe old CS that can see it gets paid, but if was never ordered, and neice is now reaching age when it will stop, it may not be worthwhile to pursue. Sorry and hugs to sister.

Another option may be to try to get X to start college fund, in a seperate account to be used only for neices's college. Some men find this less annoying. Good luck

I can only tell you what happened in my case, which may be different in your state. When we divorced one of my DD's was 14 and flatly stated she wasn't spending any time at her dad's regardless of what the judge said. The judge ruled that she didn't have to since there was so much animosity. He still ordered CS for her and X had to pay it although he tried every way in the world not to.

Her state allows for child support up to age 23. She's not trying to get child support back payments. I believe she can get it from when she applied for the hearing, which was earlier this month. But she's not trying to go back years or anything. It's a little late to start a college fund, she starts in September.

Well the CS would help. Does she have an attorney? If Dad can advance any funds, that would be the best.