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.
Can custody be changed if visitation is traumatic to my son?
Melanie's Question: I have joint custody of my 8 year old son. He has autism. His father pays child support but is not a part of his life. He has seen my son about 4 times in the past 5 years. The infrequent visits are very upsetting to my son. After the visits he can be very aggressive. He thinks his father is a stranger and I am allowing him to take him. Would it help our situation and would I have a case at all for filing for full custody of my son?
Brette's Answer: I think that in your situation there either must be frequent visits or none at all (or at least none outside of your presence). You would need one of your son's medical/therapy providers to testify about this if you want to get things changed. » Return to top
Can custody be changed if school grades drop dramatically?
Pam's Question: My ex and I agreed to let my daughter stay with him in hopes that she will do better in High School. I've monitored her grades and she's not doing well at all. He's very unreasonable and I feel that my only option is to go and pull her out of school and force her back home. How would the court look at this situation and what should I do?
Brette's Answer: You can file for a modification, but you've got to show there's been a change since the order was issued. School performance is significant, but without more details it's hard to say what will happen. I think it's going to depend on how the grades compare and what the teachers say. If she is showing any improvement at all, there's a good chance that leaving her in place would make sense. I think perhaps a question that needs answering is why is she having trouble - does she have an undiagnosed learning disability, does she need counseling to help her cope with things, etc. If you can get to the bottom of the problem and present a solution, you would be in a good position. I suggest you get an attorney who can discuss the entire situation with you.
Would emotional abuse be grounds for changing custody?
Adeline's Question: When my ex moved in with a new girlfriend, my daughter started coming home saying she heard awful awful fights throughout the day. After our daughters therapist talked to my ex about the fights, he would promise to try and make it better and then go home to tell his girlfriend. The next time my daughter went to his house she was punished for tattling by not being able to speak or play with the girlfriend's little boy. This cycle went on for about 9 months before the therapist filed an emotional abuse case. During the investigation, my ex announced that he and his new family were moving to overseas for 2 years and he was giving up physical custody. This ended the abuse investigation. Now I'm trying to plan for what happens when he comes back. If we never finished the abuse case to prove anything, can I be forced to send her to his house and have her alone with them? How can I make sure that does not happen?
Brette's Answer: File for sole custody now. If he's out of the country, it will be difficult for him to respond. If he does, you can call the therapist as a witness. Good luck.
Would the children's safety be grounds for a custody change?
Julia's Question: My husband and his ex-wife have 3 girls together. We have them half the time and when we take them back they beg us not to make them go. They are terrified of her and say that she is talking death with them and explains to them who will die first, if a house fire happens. She locks them in their rooms at night and frequent calls are made to 911 when they are with her. We have multiple pictures and videos that are damaging to her. My house is 40 minutes away (recent marriage and not sold yet), and my husband says that we would not have a chance of winning custody because it wouldn't be in the same school district. My worry is we will wait too long and she will harm them or move them. If we filed with the intent to buy a house in the same city before school, but lived in my house for now, would that hurt us in getting much needed custody now? I am in fear for their lives.
Brette's Answer: You need to consult with an attorney ASAP. He or she may advise you file a report with social services/child and family services. A threat of harm to the children is serious and needs to be addressed immediately. No one is going to care where you live if those children are in danger and need to be removed. » Return to top
What if CPS won't change custody if the Judge feels the child is safe?
Dawn's Question: My 7 year old is being molested by her 80 year old custodial grandfather. I am now in a position to provide for my daughter and want custody.. But, Child Protective Services says that if the Judge feels it is a safe place for the child, they won't do anything to change it. I have a Doctor's exam that says: "Diagnosis: Child Sexual Abuse" What can I do?
Brette's Answer: You can file for custody and call the Dr as a witness. If it is the same judge hearing the case, you will likely lose. If it is a different judge, you have a chance at least. Good luck.
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. » Return to top
What can happen if I don't show up for the custody change hearing?
Julie's Question: My daughter is 14 and wants to stay with dad in another state. She plays us back and forth, and now her dad taken me to court for full custody. I do not have money and he keeps taking me away from my job. Do I have to go to the next court if I am going to let him take responsibility? What can happen if I don't show?
Brette's Answer: Kids can learn to play parents off each other - I know how difficult that can be. The problem with not showing up is that it doesn't preserve any of your rights. If he wants sole legal and physical custody with no visitation, he might be able to get that. I know how hard it is to keep a job while dealing with endless court appearances. Good luck.
How can I keep my daughter safe if her abusive father has custody?
Sara's Question: My ex is currently in jail for the third time based on domestic violence. My 13 yr old daughter has been exposed over the years to her father's anger, as well as verbal and mental abuse toward his current girlfriend, his second ex-wife and myself. What can I do to get her out and keep her safe?
Brette's Answer: File for a modification of custody. Exposure to domestic violence does impact kids and courts recognize this. Good luck. » Return to top
Can I lose custody if I left the kids in my car when I went into a store?
Kate's Question: I have had custody of my 9 & 7 year old for the last six years. I have since remarried and have two small girls (ages 6 months & 2). I love my kids, I do not neglect them, they are loved, fed, bathed and do well in school. I made ONE mistake and innocently went in the store to get milk. An officer who was there saw me go in. He came to the car and reminded me it was dangerous to leave them in the car. My son told his father, unintentionally. Now my ex is threatening court if I don't give him full custody... Will I lose my kids??? Can he say I'm unfit because I made a horrible judgment call ONCE?
Brette's Answer: It's not up to him - it's up to the court. Your ex can certainly ask for a modification but the judge will look at all the of circumstances and decide based on what is in the best interest of the children. If he does file papers, get an attorney. Unless he can dig something else up, it sounds like you show you are a good mom. Good luck. Can I get custody if my ex moved and left the kids with his parents?
Norma's Question: I have joint custody of my two boys, but my ex has physical custody. He decided to leave them at his parents house and moved to another state. What should I do?
Brette's Answer: If he does not have the children with him, you should file for a change in custody so you have sole and then seek child support.
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.
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
Could he get custody if he hasn't seen our son for 13 years?
Question: The alleged father wants to claim custody of my son after 13 years of telling me he could not have children. He has never saw my son before until few months ago. Can he get custody of my son even with my son having an attorney?
Brette's Answer: It is unlikely custody would be changed at this point. If in fact this man is the father (I'm assuming you've had a paternity test), he could be entitled to visitation since he and your son do have the right to have a relationship. If you mean that a law guardian or guardian ad litem has been appointed to represent your son, that is a good thing since that attorney will be looking out for your child's best interest.
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
Could I lose custody if he goes to live with his Dad?
Kristy's Question: My 4 year old son lives with me and his father gets to see him whenever he wants. He went to pre-K while living with me, but his father who lives in another state wants him to live with him for the school year and attend school there. I will get him holidays and whenever I want him. By letting him do that, is there any way that he will be able to say that he wants custody and get it? I am willing to work with him on this but I don't want it to look like I am giving up my son to him.
Brette's Answer: This is giving him custody in essence. If you don't want him to have custody, don't send your son there to live. Any court who sees that you voluntarily agreed to this is going to issue an order of residential custody if asked. You can still share joint legal custody.
How do I protect my rights if they will live with their Dad for 2 years?
Jennifer's Question: I have primary physical custody of my 10 and 9 year old boys. I am considering leaving the area to attend graduate school, and this would mean I would leave my children with their father for two years. Although, I will visit often, how can I protect my rights?
Brette's Answer: You need to talk to your attorney. It should be possible to reach a settlement agreement that would temporarily alter the custody order for the time you are out of town. You will want a visitation schedule that gives you as much time as possible. You also are going to want unfettered phone and internet access with your boys. You'll want a provision giving you access to school and medical records and a provision requiring updates about medical and educational information. You also need to understand that after leaving your kids with your ex for two years, you may be faced with a fight to get them back, even if you enter into a stipulation about it being temporary. I want you to talk with your attorney about how courts in your area view these situations. » Return to top
Is it considered abandonment if I leave him with his dad and move?
Carolyn's Question: I have custody of my 16 yr old boy who has been getting in a lot of trouble and stopped going to school. I dropped him off with his father because right now I am staying with a friend and am unemployed. His father is telling me I am abandoning my child. I am wanting to move out west and think it is in the best interest of our son to be with his dad to learn discipline & respect. What are my rights? If I leave to try and better myself am I in fact doing something wrong?
Brette's Answer: If the father is willing to have him live there, there is no problem. Either of you can file a petition for a change of custody, then show up in court and explain to the judge what you've agreed on. If the father will not accept custody, then you have a problem. As parents it is your responsibility to care for your child and if you do not, the state could take custody, but you would remain financially responsible.
Is it considered abandonment if I refuse to take the kids?
Jennifer's Question: My ex and I have 4 children; he has full physical custody of 2 and I have full physical custody of two. My ex just notified me that he will be moving out of state for 18 months and wants me to take all of the kids, but refuses to transfer custody to me. Is this considered abandonment if I say no?
Brette's Answer: If he hands the kids over to you and leaves, you just go to court and get an order of custody. That's a no-brainer since he's handed them over and left. If he wants you to take them and you do not want to, I guess he could go to court and seek to have the order modified, but to be honest I don't think the judge would be very happy to have two parents in his courtroom where neither of them wants custody of their children! Good luck.
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
Can I change custody so I can move back with my mom?
P's Question: I am 15 and I love both of my parents with all of my heart and even my step parents. My dad drinks a lot and has physical custody over me and has hit me before. But since the mark didn't stay overnight no one found out or believed me. Except my mom and she couldn't do anything except to go to the cops, which we did and they didn't do anything. When I finally got sick of it a ran away and I have done that at least three times now. My father scares me and I want to feel safe in my own home. I want to be able to wake up in the morning and know that no matter what I do I'll be loved. My dad doesn't show that. I'm sick of always having the feeling of that I'll never be enough. When I use to be his everything. I can't emotionally take this pain anymore. Please help me I want to know how to change the custody and fast.
Brette's Answer: Your mother needs to file for a modification in custody. You would have the opportunity to speak to the judge and share your feelings, which will have a lot of weight. Good luck.
My son wants to move back with me. How do I do this legally?
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
Can he get custody of my two month old baby?
Brittney's Question: I'm sixteen years old and lately the father of my 2 month old girl has been asking about legal custody. I suffered verbal and emotional abuse from him, and he tried to kill himself when I was 4 months pregnant. We both have a past of drugs and mental instability, but I've been on my best behavior and really turned my life around. I also have people that will testify to my character and mothering skills. The father is sixteen, only sees his daughter a couple times in two weeks, and doesn't know how to take care of a baby. How can I make sure he wont get custody?
Brette's Answer: First of all, it's really unlikely a court would take a baby this young and do a change in custody. You need to put together a list of people who can testify on your behalf. If you have a counselor or drug counselor who could talk about how well you're doing, that would help. You need to be able to show the court that you have a stable home and can support the baby. You also need to put together a list of people who can talk about the father's dangerous behavior.
Can he get custody changed just because I'm pushing for support?
Veronica's Question: My Ex and I have a court ordered joint physical arrangement where I am the custodial parent and have 82% of time with my kids. My ex has been in and out of my boys life and has been gone for years at a time. Last year he wanted to see the boys and I gradually let him. He sees them now every other weekend, but it's hit and miss on the times. My ex often brings my kids back smelling of alcohol.
He has done nothing, pays for nothing and knows nothing about what goes on with my boys. I have made all the decision for my children regarding school, health etc., and have had to pay massive hospital bills for my younger son. I filed for child support and was awarded $800 a month, now he says because I did this he's going to take them away from me. I am a complete mess and am afraid that the courts will grant him this. My kids are now 8 and 7 and often hide when he shows up or they leave kicking and screaming. What can I do?
Brette's Answer: Don't listen to him. You are your child's primary caretaker and emotional parent. I think it is great you continue to let her see him regularly and put up with his schedule hijinks. It sounds like everything will be just fine. A lot of men react this way when they are hit with child support. It's actually very common. It's also common for him to eventually realize he doesn't really want custody. I don't think you have much to worry about. Get an attorney who can help you through the process.
Since you already are ordered to have the children 82% of the time, if you try to reduce that, there will be very little contact with the father. You need to ask yourself if you really want your children to grow up fatherless. The only complaint you have is that he brings them back smelling of alcohol. First of all, I hope you mean your ex, not the kids, smells of alcohol. If this is the case you can get the order modified to direct him not to drink alcohol around the children. If you have other serious complaints about how he cares for them, then you have a reason to seek no visitation.
You should be receiving child support and part of that should be the sharing of medical expenses. If you are not, you need to file for that. No one is going to give him more custody just because you filed for child support. » 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
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
Would giving him full custody terminate my parental rights?
Tamra's Question: My ex husband and I have joint custody, and he has physical custody of our son. I was ordered to pay Child Support, but I have gotten behind on support and the amount I owe is a huge burden for me. My ex has offered to not require child support from me IF I give him full custody. Would this terminate all my rights? If he passed away, would I have to fight to have my son with me? I don't want to unknowingly lose my son and terminate my rights as I have them now, as far as seeing him every other weekend and certain holidays etc. What should I do?
Brette's Answer: Have you considered trying to get your child support obligation modified? That seems to be a better solution than to give up contact with your child. If you allow him to have sole legal and physical custody it does not mean you are no longer a legal parent. Placement of the child after death of the custodial parent could be an issue if it had been years since you had seen each other.
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. Get people who can testify about how you've changed, where you live, where you work and that you finished your classes. Good luck. How can I legally get her back home?
Sandra's Question: My ex and I have joint custody. I kicked my 15 year old daughter out of the house 6 months ago and she is now living with her father and step mother. What can I do legally to get her back home?
Brette's Answer: That's going to be a tough one. You can file a petition to have her returned, but if she doesn't want to go, there's a good chance the court won't make her go. You need to show that your home is a better environment for her at this point. I also have to say, the fact that you "kicked her out" doesn't bode well for you. I would be very careful about using that terminology since it shines a negative light on you. Instead you want to say you allowed her to stay with her father. » Return to questions
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.
Would the father get custody if the mom goes to jail?
M's Question: If a mother goes to jail and she has custody of the kids and their father has visitation rights, can the father take the children?
Brette's Answer: Yes. Courts prefer to place the children in the custody of a parent, rather than another relative in a case like that, assuming the father is able to be a suitable parent.
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
Could custody be changed because I fell of the wagon?
Ann's Question: My ex husband and I have had joint custody and 50/50 placement of our 16 year old daughter since she was 4. I have been a recovering alcoholic since 1983. I relapsed in 2005 when my daughter was 13, she was very upset as it was the only time she'd seen me drunk. Unfortunately, last month I also gave in and I drank again for a week. She is upset, and says she doesn't ever want to come back to me. Her dad wants sole custody so he can be in charge of deciding if and when our daughter can see me. I have been attending AA daily, have a sponsor and will begin counseling. I want to continue to demonstrate good sobriety and resume our 50/50 placement after 30 days sobriety. Do you think he has the ability to get temporary sole custody?
Brette's Answer: Honestly I think that your two relapses are going to be of great concern to the court. The fact that you are going to AA is wonderful and I know what a tough battle this is for you, but that combined with the problems in your relationship with your daughter are going to make this a very hard battle. The court is going to listen to what your 16 yr old wants - her wishes are very important at this age. You could ask that the court order counseling for you and your daughter and possibly your ex - then he would have to go to them.
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
Can custody be modified to allow my boyfriend to move in?
Misty's Question: What are the chances that I can change my custody papers so my boyfriend and I can move in together? Right now the papers state that I can have no one at the house between the hours of 12:00-6:00. We have been together a year and want to move in together but do not want to threaten my custody situation.
Brette's Answer: You can ask to have the order modified. If your ex has a problem with it, you will likely need to defend yourself by showing your boyfriend is a good person and a good influence on your child. Good luck.
Can custody be changed due to improper behavior at my ex's?
Deanna's Question: Can custody change if my 7 year old told me that his dad is all ways drunk and the girlfriend takes her top off at the river and takes nude pictures? Also my son says that my ex and his girlfriend have loud sex and it scares him.
Brette's Answer: I think that this is a situation that needs to be looked into. The problem is that the way a 7 yr old perceives things may be a bit skewed, so I think you're going to have to get some help with this (i.e. ask for a Law Guardian to be appointed if you file). "Loud sex" could just be normal sex in a small apartment with thin walls, or it could be loud screaming and banging that is truly inappropriate around kids. When it happens would be a question that goes to appropriateness. Nude photos taken in front of kids are not appropriate in general, but again, you're going to need more detail.
Can I take custody away because the step mom harasses me?
Cathy's Question: My ex's new wife is aggressive and very rude towards me every time I pick up my child from my ex husbands house. Can I take custody away because she is harassing me and talking bad about me to everyone? Does that prove that their home is not in the best interest of the child?
Brette's Answer: Absolutely not. Your relationship with her is completely separate from her relationship with the children. Usually in these situations, it is a two way street. Both parties feel the other is being rude. I would really urge you to find a way to make peace with her. Hold out the olive branch - invite her out for coffee and find out what you have in common. You already have one very important thing in common - your kids. If you can find a way to be civil to each other it will be better for your children. » Return to questions
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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.
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