Home
Divorce Guide
Find A Lawyer
Divorce Forms
State Resources
Divorce Info
Marital Separation
Getting A Divorce
Divorce and Money
Divorce Emotions
Children & Divorce
Starting Over
Financial Survival
Career Advice
Dating After Divorce
Relationships
Relationship Abuse
Affairs and Infidelity
Search
Divorce Blog

Child Custody Changes
Answers From The Expert

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

© WomansDivorce.com. All rights reserved.

Related Articles:
Child Custody Changes and Visitation Schedules
Child Chooses To Live With The Other Parent
Also see:
More questions and answers
Ask the Legal Expert a question

Brette Sember is a former family and matrimonial attorney and mediator, nationally recognized expert, and author of many books including The Divorce Organizer & Planner, No-Fight Divorce, and How To Parent With Your Ex. For more information about Brette, see www.BretteSember.com.

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.

Divorce Process / Children and Divorce/ Emotions and Divorce
Starting Over / Financial Survival / Relationships

HomeDivorce GuideState Resources
Divorce Books / Store / Survey / Contact / Chat / Links / Newsletter


footer for child custody changes page