Child custody changes often occur as children get older and want
to experience what it's like to live with the other parent.
It's understandable that you might feel uncomfortable about changing
the status quo, but the following answers from the legal expert can
shed some light on the situation:
Can custody be changed so he doesn't interfere with medical decisions?
Logan's Question: Are there drawbacks to leaving a
joint legal custody order in place when the father has effectively abandoned the
child? Our 10 year old daughter has a terminal medical condition, and he has
made no attempt to see her in the last six months and only calls every couple of
months. I'm concerned that guilt will eventually take over and he'll try to
override or interfere with medical decisions that he's not qualified to make,
since he has not assisted in her medical care in the last three years since our
divorce. Are these the "right" circumstances to file for sole legal
custody, or should I leave the existing order in place and hope he doesn't
decide to get involved?
Brette's Answer: I am so sorry to hear your
daughter is ill. I think that if I were you, I would want to have things as calm
as possible for her. Going to court and creating a situation with her father
would be stressful for everyone. Should a situation arise where he tries to
intervene, that is the point at which I would take action if I were you.
However, if this doesn't feel right to you, you can file for sole legal custody.
Why is there a year waiting period before a judge will change custody?
Christina's Question: I'm 16 years old. My mom is a paranoid schizophrenic and had a relapse a few months ago. My dad got emergency temporary sole custody. My mom now has to go to this mental health place for her meds for 1 year. She tried to get a new hearing with my dad since she's stable now, but the clerk said she couldn't because the judge usually won't change custody for 1 year. Why is this?
Brette's Answer: If there is a change in circumstances she should be able to request a new hearing, but it's unlikely the judge would make a change until she has been stable for a long period.
Custody modification when a parent doesn't want to see the child
Karen's Question: I am seeking a change from joint
custody to sole custody of our 4 year old son. My ex wrote to my lawyer and a
judge that he did not want to see him until he was 7. Its been a year since he
or any of his family have seen my son. He hasn't called, sent a Christmas
present, or paid child support in 5 months. Do you think a judge will
grant sole custody or cancel the visitation?
Brette's Answer: Yes, if your ex does not want to
see your child, there is no reason a court would not grant you sole custody. » Return to top
Can custody be changed if their father has no morals?
Cheryl's Question: I divorced my ex because he cheated most of the time we were married and got someone else pregnant while I was pregnant. He remarried about 3 1/2 years ago, and is now getting divorced again for cheating. He has 4 children that I know of for sure and continues to cheat and have children and not take care of them (he only see 2 of the children including mine). I don't want my child raised with these kinds of morals and values or around different woman all the time. Do I have any grounds to ask the court to change custody from joint to sole for the emotional and mental welfare of my child?
Brette's Answer: While I understand your concern, a person's abilities as a parent are really separate from their ability to commit in a romantic relationship. You can do your part to impart your values to your child, but your ex has the right to live his life the way he wants, as long as he is not putting your child in dangerous situations or emotionally harming. » Return to top
Should I change custody if he never sees the kids?
Patty's Question: My ex and I have joint custody of
two children ages 13 & 17. They never see their father and he is supposed to
child support weekly but rarely does. He will not have anything to do with
the kids and I am very frustrated with the whole matter. They also want nothing
to do with him, so I don't force the matter. Do I need to take him back to court
and gain full custody? Am I wrong?
Brette's Answer: If he doesn't exercise his
visitation, why would you waste your time and money to get the order changed? He
doesn't use it, so he's not bothering you. This way the door is open for him to
decide to have a relationship with his kids, which is a good thing. You can't
force him to do so, but you can encourage him. Child support is a separate issue
and if he doesn't pay that, you need to begin an enforcement proceeding. » Return to top
How can I make sure my son will come back?
Samantha's Question: My son is 11 years
old and has lived with me since the divorce, but now wants to live
with his dad for one year. I said yes so that my son can spend time
with his dad (and not resent me for not giving him the opportunity).
It has only been 2 weeks since my son has left. Since there
are no legal papers, I want to make sure that my son will be back
after the time is up. Is it too late because I trusted my ex
for my sons sake now he says he can't reassure me that he will be
back I don't know what to do now.
Brette's Answer: Whenever there are child custody
changes, it is a good idea to do it in a formal, legal way
so that there are no misunderstandings. You can still go to court
and request a modification of your order with the terms you have
agreed upon. If your ex no longer agrees with the one year plan,
then the court will have to decide what is in your child's best
interest. » Return to top
How do I prepare for a custody trial if I don't have a lawyer?
Sheila's Question: I have a custody hearing tomorrow
for my 10 yr old daughter who has lived with me up until the last year and a
half. My daughter wanted to go live with her dad at first, and I wasn't going to
be the type of parent to tell her no and have her hate me ( I wish I would have
now). Now she wants to come back home to live with me. My ex is now
going for full custody of her. I can't afford an attorney, so what is the best
way to go into court?
Brette's Answer:
You need to try to get some evidence together, although the night
before is a little late. Bring people with you who can testify about
what kind of mother you are and how happy she has been with you. You
will need to testify yourself about how much time you and he have
spent with her, what kind of parent he is and how you are a better
parent. You can get more tips by reading this article on how
to prepare for Child Custody Battles. Good luck!
Can we change custody without having to go back to court?
Natalie's Question: My husband's 18 year old son has
decided he wants to live with us. Do we have to return to court, or can both
parents sign off without having to go to court?
Brette's Answer: You can just submit a stipulation
to the court with the change. » Return to top
Can counseling be required before we go to court?
Susan's Question: My son is 14 and has lived with me
his whole life. I recently got engaged and now my son wants to live with his dad
(an abusive man). I know my son is afraid of his dad, and is also scared
to NOT go with him. I'm afraid he won't tell me he wants to come back after he
is living with his father. I do not have thousands to spend on a trial. But I
have plenty of documented incidences. Non return on visitation days by my ex.
Plenty of days my ex did NOT see my son. He also leaves every year for 6 weeks
to hunt..... Where will my son be? It seems the lawyer is telling me either hand
your son over or fight and spend a lot of money. Is their no middle ground?
Counseling ordered for now?
Brette's Answer: I think the answer in your case is
counseling. First, your son needs a therapist to talk to, to help him sort this
out. Next, I think you and your fiancé should go with your son for some family
counseling. This is a big change for your son and he needs to be able to develop
trust and a good relationship with your fiancé. It will take time. Getting some
help to work through this big change is a good idea. Your son's counseling may
be partially covered by your insurance, so that will help.
It's good that you have documentation to help you should you go
to trial. I hope it does not come to that, but if it does, then you
have to realize that it is worth the cost to protect your son. Good
luck. » Return to top
How can I get custody back after being deployed by the military?
Cynthia's Question: Before my divorce was final, I
received orders to PCS to Korea (military) for one year. I was advised at the
time to go for joint and just let my ex be the parental parent because I would
be overseas. I am coming back soon and I want to know what my chances are of
getting parental custody switched over to me. He has a checkered past where the
kids are concerned and he is keeping them away from me now. I have no clue what
is going on in their lives and he refuses to talk to me about things even though
we have joint custody.
Brette's Answer: You should get an attorney and
file as soon as you get home. You also need to ask for visitation from him as
soon as you arrive and document everything - what he agrees to, what he refuses,
etc. You should be aware that a court will not want to make an immediate change,
but instead have a more gradual shift so the kids can adjust. » Return to top
What can I do if she wants to live with her "Disneyland Dad"?
Dawn's Question: I have had sole custody of my 13
year old daughter since she was five, and her father rarely sees her. Recently,
I mentioned that I would need to go to court for child support, and all of a
sudden he has been "THE PERFECT DAD". Taking my daughter out and
buying her what ever she wants. He allows her to have a boyfriend and she
doesn't have to do any chores at his house. He's making it easy for her to have
no rules and responsibilities. Now he is threatening to go to court and fight
for her to reside with him. Because there are no rules and chores at his house, she
is saying she would like to go reside with him. I have set up counseling for
her, and I am trying to work through this. What can I do?
Brette's Answer: Since your daughter has lived with
you for such a long time and he's pretty new to the picture, a court would be
very cautious about a change of custody. It is also common for children your
daughter's age to go through feelings like this, so it is not something the
court will be unfamiliar with. Getting her into counseling is an excellent step.
All you can do is be patient. Parent as you see best. Be glad that at least she
now has a relationship with her father. Document everything so that you can show
the court how many years he has been absent, how much you do for her, and what
kinds of problems you see at his home. I know it's a hard thing to go through.
All you do is continue on your path, get a good lawyer and know that most of the
time, justice does prevail. » Return to top
Can my son move in with his Dad when he turns 12?
Debbie's Question: My ex and I have joint custody,
and my 11 year old stated that his dad told him that he could tell the judge he
wants to live with his dad when he turns 12. My ex has had a drinking problem
and a dui in the past, but has just completed a drug program. I'm worried that
he will take my boys. He lives with his parents and has a different job every
other month. Should I be worried?
Brette's Answer: To change custody, he would need
to show a change in circumstances. Your son's opinion is important but is not
even close to decisive in the case. His past history is important. Completing
rehab is a good step, but it doesn't mean he will stay clean. I think a judge
would be reluctant to change custody at this point. » Return to top
Topic: Changing Physical Custody
Brenda's Question: I had custody of my
son for 14 years. Last year my son decided he would go live with his
dad. He said he was happy at home, but wanted to learn more from his
dad. Now he tells me that he is scared of both his dad and his wife,
that he basically made a mistake in going there in the first place,
and wants to come back home. I am scheduled to take him home today,
but I want to call his dad and tell him my son wants to stay for
good and give him the reasons why. I'm concerned for my child's
safety at this point. If his dad has legal custody, what can I do to
get him back now! Do I have to give him back to his dad?
Brette's Answer: You will need to go
back to court and get custody changed. It sounds like you did this
last year when your son wanted to live with his dad, so you just
need to do it again. The judge will want to talk to your son and
find out what his reasons are.
The only way to avoid going back to court is coming to an
agreement with your ex. You could point out that you were willing to
make a change last year based on what your son wanted, so maybe he
can do the same thing now. » Return to top
Will a custody change affect child support?
Cindy's Question: My sixteen year old son decided a
month ago to go live with his real father. My ex has paid child support for 14
years now. On top of the pain from my son walking out and not coming to visit,
does this mean that I will have to pay him child support?
Brette's Answer: If the court determines this
situation is in the best interest of your child (and at this age, your son's
opinion is very relevant), and residential custody is changed, a change in child
support is possible. Consult an attorney. » Return to top
Topic: What If Your Ex Remarries
Tammy's Question: My ex-husband has
married and filed for custody in the same day. I am a single mother.
Will this give him any leverage in the custody battle?
Brette's Answer: When a court considers
a request for a change in custody, the judge looks at all of the
circumstances. So the fact that your ex has remarried is certainly a
piece of information in the case that is relevant, however, it's not
going to be the reason for a change. The judge is more interested in
how you and your ex parent, how you relate to your child, how well
you allow the other parent to have a role in the child's life, and
how well your child is doing in the current situation. I would
suggest you see an attorney and discuss all the factors in the case,
but I don't think you should feel afraid you will lose custody of
your child just because your ex has remarried. » Return to top
Topic: Custody modification when a parent is absent
Summer's Question: My ex and I mediated in court and
settled on joint custody. Three months later, he stopped paying child support.
He has now fled town on assault charges and there is a warrant out for his
arrest. I want to change the custody but I can't find him to serve him. Can I
serve him without notification? It has been 3 years since he has had any contact
with our child. He just up and left. How can I change custody to sole custody
without serving him?
Brette's Answer: You need to go to court and let
them know that you do not know his whereabouts. It's likely you will have to use
an alternate form of service, such as publishing a notice. It's not as
complicated as it sounds and courts do this all the time. Good luck.
» Return to top
Me ex is suing for custody after my lawyer advised me to move
Gwen's Question: Due to harassment by
my ex after our son was born, I went to court to get a restraining
order against him. Our case dragged on for 7 months, and I had
to hire a private investigator to prove that he was drinking
heavily. The judge initially ordered supervised visitation
every other week for 2 hours, and we had to go back once a month to
get it increased. During this time, I lost my day care and
housing assistance, plus I was forced out of my rental. Soon
to be homeless, my lawyer dropped my petition and told me that I
could move to find better work. My son's father has now
petitioned for custody, even though he has 5 DWI's, 2 counts of
endangering the welfare of a child, and collects SSI due to
alcoholism and mental illness. Can the judge take my son away?
Brette's Answer: This sounds like a very difficult
situation. I think you ought to consider getting a new attorney. From what
you've said, it is certainly outrageous. The only thing you need to be concerned
about is if you denied him visitation. Doing so is grounds for a change in
custody. If he wanted visitation and you did not allow it, this could be a
problem for you. Get a new attorney and start from the beginning with him or
her. » Return to top
Topic: Sole Custody Modification
Kerrie's Question: Almost 10 years ago, I
voluntarily gave sole custody to my ex-husband. Social workers pressured me to
do it because of my alcoholism. Ever since that day, the children have been with
me every second that they aren't in school. I attend every school, church or
sport function. It's been almost a year now that I have been sober. I'm
remarried and have a very stable life. Will I ever be able to get my rights back
or even just joint custody? Something out-of-court? What do I do? Have I been
sober long enough to even try?
Brette's Answer: It sounds like you have an
excellent case for custody. You should contact an attorney who can put together
an air tight case. The basis of your request will be that there has been a
change in circumstances. You should work on gathering evidence - calendars
showing your visits to schools and all the times the kids have been with you,
teachers who can testify about your involvement, pastors who can testify about
your family life and so on. Good luck. » Return to questions
Can he get custody changed by simply lying to the judge?
Tammy's Question: My divorce was final in November
of 2005, and we both agreed on joint custody and that I would remain primary
custodian. Six months after the divorce, he married one of his mistresses.
He then hired a lawyer and filed for sole custody, saying that he was denied
visitation (which isn't true). He conned the judge with his false
handwritten log. I had no lawyer and the judge would not let me tell him the
truth or accept my evidence of abuse. He only wants sole custody so that he
doesn't have to pay support (he told me so himself). Can my 10 year old write a
letter to the judge?
Brette's Answer: Ask for a Guardian ad litem or Law
Guardian to be appointed. Good luck » Return to questions
Topic: Getting Joint Custody Modified to Sole Custody
Jody's Question: I have shared joint custody of my
two daughters (ages 8 and 10), but I have recently hired an attorney in order to
get full legal and physical custody. There have been sexual abuse issues
(involving other minor children in their fathers family exposing my children to
inappropriate behavior), emotional abuse of my children from their father, and
many other issues. This seems to be taking a long time. What are the guidelines
that a judge must look at to make this decision?
Brette's Answer: Every state has different case law
about this. Your attorney is the expert. Is there a child protective abuse or
neglect case pending also? If so, this can help your case for custody. Is there
a temporary protective order in place that instructs your ex not to expose the
children to the abusers? These are questions you can ask your attorney. The
bottom line is that it can take a long time to get this type of case completed
because your ex has to have the opportunity to present his defense. You've got
to wait for the wheels of justice to turn, but in the meantime, talk with your
attorney about whether social services is involved and whether you can get a
temporary order that will protect your children while case is pending. » Return to questions
Do I stand a chance at getting custody back?
Katharina's Question: I lost custody of my son one
year ago because I had a meth problem. I wasn't very fair with the dad, and I
was never on time for his visitations. Will I be ever able to get more
time with him or even maybe get custody back? I have turned my life around and
took parenting classes. I also have a good job and have started paying
child support and everything. I just want my son back. What can I do?
Brette's Answer: If your life has changed you can ask for
custody or an increase in visitation. Line up some people to testify for you
about how you've changed. Good luck.
Can I go get my son if my ex gets sent to jail?
Krystal's Question: My ex just went to jail and my
son is staying with his Dad's girlfriend. I do have visitation, and she is not
his mother. Can I go get my son?
Brette's Answer: If he is in jail, you should have
custody. If the girlfriend won't give him to you, you might have to call the
police. You will definitely need to go back to court to get the order changed to
reflect the new situation.
How can I get custody if I've been in prison?
Jessica's Question: When I went to prison, I gave my
husband legal custody of my son from another relationship and our 4 other
children. Now we are divorced, and he says I will never get them back because he
has legal custody. I am doing good now and I am ready to fight for them. What
are my chances of getting them back or sharing custody?
Brette's Answer: You need to be able to show you
have a stable home and a job and can support them. If you have a parole officer
who can testify as to how well you are doing, that would help. You need to have
a plan for where they would go to school, how often you would arrange
visitation, and how you would parent. » Return to questions
Could I lose custody because I got a DUI?
Michelle's Question: I was granted emergency custody
of my children. My ex husband had custody for 6 1/2 years. He went to jail for
beating up his new wife and hurting her little boy. 2 weeks later his wife tried
killing him leaving him in the hospital for 3 months. Now a couple of days ago I
made a mistake and got behind the wheel of a car after having a few drinks and
got a DUI. I am scared that the judge is going to give them back to him.
Brette's Answer: First of all, the only way the judge
would know is if your ex tried to use that as a reason for a change in custody.
It sounds to me like the kids would be in far more danger in his household than
yours. However, if you are really concerned, you ought to do something that
shows you are taking your arrest seriously - join AA or another treatment
program to show you are taking steps to keep it from ever happening
again. » Return to questions
Topic: Custody Modification in Cases of Alcohol Abuse
Question: My ex-husband and I share equal custody of
our children, and neither of us pays child support. He is an alcoholic, and I
thought he had it under control when we first split up, so I didn't fight him
for sole custody. I felt it would be better for the kids to have a relationship
with their father. I am now coming to the conclusion that they should no longer
be with him at night. He picks them up from school, but drinks every night to
the point of passing out. I don't want to deny my children their father,
but I am worried about their safety. Is it possible for a court to change a
custody agreement under these circumstances?
Brette's Answer: Yes. This is most definitely a
change in circumstances, which is what is required to change a custody order.
This may require your kids talking to a Law Guardian, Guardian ad litem, or the
judge, but it sounds pretty open and closed. You should start documenting things
with a journal or calendar now. » Return to questions
He wants full custody so that he doesn't have to pay child support
April's Question: My ex is taking me
back to court to try and get sole custody, even though he never
spends time with our son under our current shared parenting
agreement. The reason that he is trying to change custody is that he
doesn't want to pay child support. Do you think the judge will
change the custody agreement?
Brette's Answer: Judges are used to seeing fathers
come seeking custody to get out of paying child support. If he has never
exercised his visitation time, no court is going to give him sole custody. Go in
and present the facts. Bring witnesses if you can. » Return to questions
This column provides general information about
the various aspects of divorce. It is not intended to take
the place of legal counsel and should not be considered personal legal advice.
For specific recommendations concerning your
situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim
any liability from any claim arising from any information contained
in this column. This column is not a substitute for legal advice.
