Child custody changes often occur as children get older and want to experience what it's like to live with the other parent. But there are other instances that warrant a change in custody as well, such as a change in circumstances for either parent.
By WomansDivorce Staff | Answers by Brette Sember, J.D.
Child custody orders outline which parent has the responsibility of caring for and making decisions for a child. While the initial child custody agreement is made during a divorce or separation, circumstances can change over time which necessitate a modification of the existing custody arrangement. In the United States, child custody can be changed when the parent’s mutually agree, if one parent relocates, if either parent’s work schedule has changed, or if there is evidence of abuse or neglect.
The legal process for modifying child custody varies from state to state. In some jurisdictions, there is a waiting period after the initial custody order was issued before child custody can be modified. To change custody, you need to petition the court for a modification of the custody order. If you and your ex can reach a mutual agreement to change custody, it should be approved by the court. If you can’t agree, then the matter will need to be decided by the court. It is crucial to understand the legal process in your state and the requirements for modifying a custody agreement before proceeding.
Below are links to the various sections discussing different instances involving child custody changes. Read through the answers from our legal expert to get some perspective on your own situation.
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. 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.
Nancy's Question: My soon-to-be ex moved about 250 miles away. My ex calls me frequently to rant at me about how I "ruined" his life and that he wants custody of our son. He keeps claiming that I am keeping our son from him, even though I've offered to send the kids to him via train or even to pay for a motel room down here for a night for him to visit them.
He has said that if he can't get custody he'll force me to move within 50 miles of him so he can see our son more often. Can he do that? Our son has leukemia and is on disability so I can stay home and care for him. My ex says that because I'm not working, that I'm "sponging" off our son, and that he can take him from me for that. My nerves are frayed.
Brette's Answer: He left the area. Your son has a serious illness. I would say you're holding the cards at this point. Just document what is happening, keep offering to make your son available to him, don't talk bad about him to your son, and stay focused on helping your son get well. Ask for a reasonable visitation program that minimizes travel for your son. The court is likely going to be on your side. Good luck and good wishes to your son.
Lisa's Question: I have a 5 year old daughter. Her dad is always threatening me about taking custody of our daughter. Can he get custody if my daughter has been to the doctor's too much? My friend told me that could happen and that he could build a case on this, but she has been sick a lot and I as a mother make sure she is well taken care of.
Brette's Answer: It depends on why she is at the Doctor. If she has not been receiving proper care or nutrition, then there is a concern. If she is a normal child who has just had a bad run of ear infections or colds, then it's likely nothing to worry about.
Daphne's Question: I have two special needs boys that are in a state run facility and have been there before the divorce. I moved nine hours away a few months ago and my ex just found out. He wants custody because I moved, does he have grounds? Do I need his permission before moving them to me? I have full custody.
Brette's Answer: The issue will be what is in the best interest of the children. If you are too far away to get there quickly in an emergency or to have regular time with them, this could work against you. There are many more factors involved and in a case as complicated and unusual as this it is very difficult to say what could happen without knowing all the details. You should consult with your attorney.
Patricia's Question: Can I lose custody if I don't inform my ex of decisions regarding the children? We have joint legal and I have physical. My daughter was diagnosed with a bone tumor and I have told my ex of 5 appointments and he hasn't shown up for any. I also gave him a disk of a CT scan so he could find a specialist as he requested, but he never followed through. He wants me to keep informing him of the doctor visits and surgery. I feel like he has no right since he hasn't shown up to any appointments or helped or had to do the worrying. Am I in violation of anything if I no longer communicate her condition to him?
Brette's Answer: I think you should continue to update him but expect nothing in return. Think of it this way - if sending one quick email or text once a week keeps him from causing you problems you don't have time to deal with, then it is worth it. Just send it and plan to hear nothing back from him. Just keep him informed about the decisions YOU are making but don't ask for his input or help.
Taylor's Question: I have had sole legal and physical custody of our son since age 2. The reason I went for sole custody is because we could not agree on medical treatments for our son's condition (which is life threatening). Since the hearing he had not seen his son. This was not what I wanted as I want my son to be a part of his father's life. Now that my son is older and able to administer his own injections, I would like to change to joint custody so my ex can feel part of our son's life. What should I do?
Brette's Answer: You need to either file for a modification or come to an agreement with your ex and file a stipulation. You certainly don't need to change the terms of the custody agreement for your ex to be a part of your son's life, and in fact you should not count on a change in wording creating a change in behavior.
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 I have a case at all for filing for full custody of my son and would it help our situation?
Brette Answers: 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.
Rachel's Question: My divorce was finalized three months ago. I was told at the time to do shared joint custody and I could get residential later. Now that I am trying to get residential custody, I'm told I can't because there is not enough for it to be changed. He has now changed jobs so I don't know where he works. Then also he is getting married on Friday. I want primary residential custody of the kids because we can no longer get along. Do I have any options? Will it matter that I allow for him to have the kids during my scheduled time due to family and stuff that comes up?
Brette's Answer: A change in circumstances has to be shown for there to be a change in custody, so you need to show the court that something has changed since the last time you were there. Maybe your situation has improved or perhaps the situation at his house has changed for the worse. Perhaps the children now have different needs based on age, schools they attend, new interests and activities that require a schedule change, or medical problems. Custody should be a give and take and you were doing the right thing by allowing him to have the kids for his wedding even though it was not his scheduled time. In return, he should also be flexible, making changes so that you can have the kids for important events in your life as well. Working together to make changes to the parenting schedule is hard, but it is always worth the effort.
Kristie's Question: I have joint legal custody of my 4 year old son with my ex-husband having physical custody. He recently remarried and his new wife is extremely rude to me and demands that she be called "mommy." She told me that they are moving out of state (6 hours away) for the purpose of depriving me of my visitation rights. Would I be able to ask the court for change of custody based on this?
Brette's Answer: Absolutely. You should also object to her asking to be called mommy.
Norma's Question: I have joint custody of my two boys, but my ex has physical custody. What should I do if he decided to leave them at his parents' house and moved to another state?
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.
Stephanie's Question: My ex and I share 50/50 custody of our four-year-old child. She is with me for one week and with him for the next. I work 2 to 3 nights a week between 6 and 8 hours a night (between 8 pm to 8 am). Sometimes when I have her, I do not work at all. I always put my daughter to bed before I leave for work and I am home before she wakes up. My ex is now threatening to call CPS or take me back to court because I have a physically disabled friend sit with my child throughout the night while she is sleeping. If there ever was a problem, I would get a phone call and be there immediately. Can he do that when we share physical and legal custody of our daughter?
Brette's Answer: He can certainly file for modification but it would be up to the judge to decide what is in your child's best interests. The question would be how safe your child is and what kind of care the sitter is able to offer. Talk with your attorney who can advise you.
Question: I divorced in Massachusetts and I am the custodial parent of a college sophomore. I moved to Florida and my ex now wants to modify custody as my daughter is fulltime college student living in MA. Help!
Brette's Answer: If your child is in college, I am assuming she is over 18. Your custody agreement no longer applies since she is an adult. She can go where she wants, when she wants.
Question: When my ex moved in with a new girlfriend, my daughter started coming home saying she heard awful fights throughout the day. After our daughter's therapist talked to my ex about the fights, he would then go home to tell his girlfriend. The next time my daughter went to his house she was punished for tattling. 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. Now I'm trying to plan for what happens when he comes back. If we never finished the abuse case, 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.
Pam's Question: I have sole custody of my son. Can my ex have the custody changed because I have been named in a divorce as the person the adulterer was with?
Brette's Answer: He can try, but if your involvement with the other person did not affect your parenting it should not be relevant. It will make you look bad, but if you can make it clear it had no impact on your child, it should make no difference. Every judge is different of course, and may take a different view of the situation.
Lynni's Question: We share custody of our 12 year old daughter and alternate weeks. This is his week and after trying to contact them for hours, I found she spent the night with a friend so he could go to a big party. I was not consulted on this, and don't even know this family. Can I go before the court and plead my case to have my daughter live with me full time? In our separation agreement it states that he must approach me before anyone else if he cannot care for her for any reason.
Brette's Answer: This one time incident would not be grounds for a change in custody. The fact that he is supposed to ask you to babysit before anyone else is a valid concern. You could file a violation with the court for this.
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. 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.
Kate's Question: I have had custody of my 9 & 7 year old for the last six years. I love my kids, I do not neglect them, they are 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 of the 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.
LJP's Question: In my final order 3 years ago, 2 of the 3 kids were ordered to live with their dad, but refused and did not. I was ordered to pay support for the 2 children and he pays support for the 3rd child who was ordered to live with me. What are my chances of asking for an emergency hearing to modify the final order so that my children can stay in their school and not be forced to move away?
Brette's Answer: You should definitely get the order modified to reflect the current custody situation. Child support would then be modified.
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 year 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.
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-husband's 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.
Nancy's Question: I have visitation rights of my 10 year old son. He has lived with his father and his grandparents interchangeably for the last 5 years. I am married to a service member and do not live close to my son, however I am very much involved and support my son 100% (medical, school, and extracurricular needs, etc.). I am seeking a modification to the court order due to the distance and my inability to follow a weekend schedule. I want longer visitation or for our son to come live with me. What do I need to prove to the court so the judge can make a change to benefit both my son and I?
Brette's Answer: You need to prove this is in the best interests of your child. This means showing what a great environment you can provide and pointing out the problems with the current environment. I would also assume there was a reason your ex was given custody - you need to address that to show it is no longer relevant or a concern.
Renee's Question: We’ve been legally separated for over a year. He now sees the children twice a week for about 6 hours when he picks them up from school and waits for me to come home from work. He may see them 1 or 2 Saturdays or Sundays a month. In our separation agreement we both have legal and physical custody and we are supposed to split the bill's 50/50, but I pay more than he does. He wants to avoid child support. However the children live with me and I do EVERYTHING for them. I feel he will try to take the children from me by making look like a bad parent. He's keeping a log; if I miss a hair appointment for the kids, am behind on bills, etc. What can I do to fight him?
Brette's Answer: You should talk with your lawyer to discuss your options. You can also keep a log which will show how often he sees the children, as well as everything you do for them. This will clearly demonstrate you are the primary parent. You may be able to seek to modify your order if he isn't seeing them as often as he is supposed to, so that the order reflects the reality. You can enforce the child support provisions and require him to pay his share of bills.
Esther's Question: According to my divorce decree, my ex and I have joint custody. He has physical custody of our 2 daughters till the ages of 10 and 8. My daughters 10th birthday is coming up and my other daughter turns 8 six months after. What is the best way to go about the exchange?
Brette's Answer: It depends on how your order is interpreted by your local courts. It could mean that you get the 10 year old on her birthday and the 8 year old on her birthday or it could mean you get them both on the 8 year olds birthday. I recommend talking to your attorney. If you are asking how best to make the transition, I recommend doing a lot of talking as a family about this, working out how everyone will handle the transition and how schedules will change.
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.
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: Just file for a modification. If you can, get a stipulation signed in advance regarding the change and just submit that to the court showing you both agree.
Trudy's Question: My ex and I need to modify the managing conservator in our joint custody decree. The children's school in my ex's town will not enroll them because I'm the managing conservator and live in another state. We simply want to keep joint custody and just switch managing conservatorship. Can we submit proper documents to the court without representation because neither of us has the money to pay for a lawyer?
Brette's Answer: You should be able to submit a stipulation you both sign agreeing to the change asking for a change in the order.
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 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 there 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.
Sheila's Question: I have a custody hearing tomorrow for my 10 year 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 and these tips for testifying in court. Good luck!
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.
Amy's Question: I have 60% custody and my ex has 40%. My ex recently moved 200 miles away from my son's school and wants to discuss custody because it's inconvenient for him to drive so far to pick out son up. Can I refuse to negotiate custody even if he's going to take me to court?
Brette's Answer: You can refuse to negotiate, but it will be up to the judge to decide if a modification will be made.
Taralynn's Question: I have the primary custody of my teenager, but his father and I decided he should move with his father for academic purposes (on the other side of the coast). We do not want to go through court modifications, but would rather fill paperwork out giving him permission to take him and have it notarized? Is it possible?
Brette's Answer: It's possible, but it doesn't offer the same protections. It doesn't take much more to fill out a court stipulation and submit it. I understand that you don't wish to sign over custody though.
Tatiana's Question: My ex was awarded sole legal custody with 50/50 physical custody, despite the fact that I have a current restraining order against him. My attorney stated that the judge "might have been wrong on a law". I want to appeal, but have no money. However, I'm thinking about filing a motion in 6 months to ask the court to change the custody order. I know that I have to show the court a change of the circumstances and why the custody might be changed. Can I file a motion based on being underrepresented at the trial?
Brette's Answer: You cannot use this as a chance to try to appeal what happened before. You can only seek a change based on something that has changed in the situation since the last order.
Summer's Question: My ex and I mediated in court and settled on joint custody. 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 let the court 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.
Tammy's Question: My divorce was final a little over a year ago, and we both agreed on joint custody and that I would remain primary custodian. Six months later he 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. 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.
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.
Adriana's Question: I was pressured during my divorce to accept a shared parenting plan where my ex has 12 days per month on an ongoing rotating schedule 6/8. My seven year old son has disabilities and school is noting depression and changes in his personality. I am concerned about his well-being. I want to avoid another court battle, since my divorce was very contested, financially complex, and lasted three years. Is this a normal type of arrangement? What can I do to modify a decision I made under extreme pressure?
Brette's Answer: Modifying a custody order is much simpler than your divorce was. It's really the only way to change your situation, unless you and your ex can agree to make some changes yourselves. Your schedule sounds confusing and something a little smoother might be easier for your son.
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 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 won't 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.
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 the big picture. 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.
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? 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.
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.
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 the judge initially ordered supervised visitation for my ex 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.
Tamara's Question: My ex-husband and I have joint legal 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.
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.
Celine's Question: The first few months after our divorce were horrible as he decided to be petty and vindictive. Last summer he attempted suicide twice and I had to go rescue him both times. He was admitted 3 times to a psychiatric facility where he was diagnosed with severe depression, a borderline personality and alcoholism. When my daughter goes to his house he refuses to let me talk to her. I am afraid for her safety, but since I only have physical custody of her I feel that I have to abide by our divorce decree. Could I be granted sole custody and should I report him to DHR?
Brette's Answer: You can seek to modify custody based on what has happened. Calling child and family services is an option but unless there is a current danger, there isn't much they can do. You have to decide how dangerous you think the situation is.
Jayne's Question: We have been divorced for a couple of years and have shared custody, with my ex having primary residential custody. The school called D.C.F. due to possible abuse by my ex. My son is terrified of his dad, stating he will jump out of his 2nd floor window at his dad's house to escape his abuse. I have letters from my therapist stating I have never been diagnosed with the things my ex is saying, letters from my sons school saying how well he is doing the past weeks (since I've kept him from his dad). I've had to get a restraining order because my ex is threatening me. My ex also has a history of violating restraining orders. Do I have a chance at winning this for the safety of my child?
Brette's Answer: If the DCF investigation is founded, you will definitely win. You can ask for a temporary order while that is pending for all of the reasons you have given.
Question: How might it affect my child custody case if my spouse informed DCFS that I did not provide medical attention for our children, ages 4 and 6, after a car accident and the kids confirmed this to be true?
Brette's Answer: It depends on the facts. If DCFS finds neglect or abuse, you could lose custody that way. If the children are not removed and your custody case moves forward, it depends on what the judge determines. Did you act in the best interest of your children? If they were unharmed and that was obvious, it's less likely to affect your case. However if there was any question as to their condition, it could be problematic. You should get an attorney.
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" Help!
Brette: You can file for custody and call the Doctor 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.
Bev's Question: My husband has not been able to see his children for nearly 6 years because his ex-wife stopped him from seeing them. We have just found out that his children have been taken into care and we would like them to join our family. Would this be possible if we go through the right channels?
Brette's Answer: Yes it is possible, unless there was some kind of abuse or neglect in the past. Contact the department of child and family services or social services in the county where the children reside.
PJ's Question: My daughter's father and I have joint custody and he has visitation. I am primary custodian. Last year he moved to Serbia, got married and had another child. Is there anything I can do about the custody/visitation since he no longer lives in the country?
Brette's Answer: You can seek to have it changed to sole legal custody. You will need to work something out so your child can continue to have contact with him even though he is far away.
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 pay child support weekly but rarely does. He will not have anything to do with the kids and 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.
Michelle's Question: My stepson's mother kicked him out of the house. Since then, he has tried to repair his relationship with his mother but to no avail. He goes to school right across the street from her office, yet she is stating that we are not surrendering him at the school. We sent a motion to modify the Custody Order for him to live with us and now she is saying that we are in contempt of court. Our son is 17 years old, graduates when he is 19 years old and has his own car. What do we do?
Brette's Answer: Talk to an attorney about modifying the order to meet the current status and set visits to as agreed to.
Alysa's Question: We have a court agreement of 50/50 custody, with a week on week off with each parent. However, my ex decided to take a year’s vacation, in which there were no calls, texts or visits to our child. Covid really hit and all courts were closed. Once things started opening back up again, my ex decided to come back around and continue with the 50/50 agreement, which only lasted a few months before he disappeared again. Currently my child has started kindergarten and ex is wanting to make decisions. Will the judge see that he is inconsistent and grant me full custody? I'm nervous the judge will see he's "trying" to be an active parent, even though it won't last long.
Brette's Answer: Judges want children to have contact with their children. They are not going to take visitation time away because someone missed visits in the past if they are consistent now. The best thing to do is talk to an attorney so you can have a game plan and document everything that happens.
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 seen my son before until a 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 guardian ad litem or law guardian 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.
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. It's been a year since he or any of his family have seen my son. He hasn't called 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.
Jaydyn's Question: I moved back to the mainland after trying to reconcile with my ex in Hawaii. I didn't feel like he was fit to care for our daughter, so I signed power of attorney over to my dad so he could fly my daughter to me in a month. During that time, my ex filed for full custody saying I abandoned my daughter. My daughter is now a resident of Hawaii and I want to bring her back here. Will I win custody? What can I say in court so I can bring her back with me?
Brette's Answer: I think you're in a tough spot here since you left her. You're going to need to come up with a very convincing explanation as to why you did that. You'll need your dad to testify about what the plan was and what the reasoning was and whether he felt it was sensible.
Carolyn's Question: I have custody of my 16 year 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 think it is best for 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.
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.
Jennifer's Question: I know two parents who are divorced with a teenage son. The problem is that both have remarried and both DO NOT want custody of the child at all and want nothing to do with him. Where should the child go (no extended family members want him either)? What kind of motion should they bring to the court?
Brette's Answer: That is extremely disturbing. My first reaction is that this family needs to see a therapist ASAP. It's not normal to want nothing to do with your own child. It is possible for them to surrender the child to foster care and ask that their rights be terminated. They will still be liable for support. The amount of damage this is doing to the child is simply unthinkable.
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 that 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.
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.
Sofia's Question: When my baby was a year old, we broke up and the baby stayed with him. I used to see my son once or twice a year, but I want to spend more time with my son, who is now 8 years old. My ex he lives with his parents, his house is very small and he doesn't have a room for my son. I just moved in to a big apartment and I can offer my son his own room. Who is more likely to get the custody of my son?
Brette's Answer: Judges like to keep the status quo. You've agreed for years to this kind of schedule and you need to show a reason why it no longer works. If your son is happy and healthy there is little reason for a judge to make a change. Just because you have a bigger home doesn't mean that custody should be changed. If you currently have joint custody, that is likely to be continued unless something has changed.
Sara's Question: My ex is currently in jail for the third time based on domestic violence. My 13 year 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.
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 custodial 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.
Stephanie's Question: After my divorce I was in an abusive relationship and my son saw him yelling and told his dad, so he went to court and took custody from me. I stayed with my abuser thinking counseling would help and I saw my son thru supervised visits. I finally got away from my abuser a year ago, but getting some custody back has been hard. I've been in counseling for 2 years and taken co-parenting and parenting classes, but I only get my son part of the time. I ask his dad for more, but he said no that he should be in his home for the school and mine every other weekend. He's 6 now and I volunteer 2 days a week in his class. Do I have a chance? I know I messed up.
Brette's Answer: I'm sorry you've gone through all this. The problem is that courts like to keep the status quo. If your son is happy and healthy, there is little incentive for a change. It sounds like you have not sought a change through the court, just through your ex, so if you want a change that is how to get it. I think the fact that you volunteer at his school is going to be a great help to you. You need to show how your life has changed and that you can provide a good environment for your child.
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.
Mandy's Question: After my divorce was finalized, I spiraled into a deep depression and attempted suicide. My ex was granted temporary full custody. It has been a month now. I am seeing doctors regularly, am on very helpful medication, and am feeling great. Is there anything I can be doing to help regain custody of my two daughters? And how long could it take.
Brette: The best thing to do is follow your doctor's advice, work hard at your recovery and take positive steps in your life. Document your recovery and improvement. Make the most of the time you do have with your children and focus on being an excellent parent. It's hard to know how long it will take to regain custody. Talk with your attorney.
Sheree's Question: I will be moving at the end of the month and I went to court to see if the judge would let my girls' go with me. The judge ordered them to stay with their dad here in California. If my daughters' come out to visit, and decide they want to stay with me, do I have to force them to return to their father?
Brette's Answer: Yes. If you want to change the order, the appropriate way to do that is through the court and children of these ages would have an important voice. That being said, there are certainly some parents who don't follow the proper procedure, however they open themselves up to a contempt order.
Terri's Question: My 16 year old daughter wants to live with my ex. I currently have custody of her and she would have to go to a different school. Do I have to sign over my rights or can I let her live with him without going to court over the child custody changes?
Brette's Answer: If you both agree to a change, you can do it, but it's usually a good idea to put your agreement into a stipulation that modifies your order. You should talk to your attorney about your options and how allowing her to make this move could affect your rights.
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 son's 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.
Kristen's Question: I have been divorced for14 years and have primary physical custody. About a year ago he moved back from out of state and now the 14 year old wants to "know what it is like to live with daddy". He lives in a different county and she would have to transfer to a new school which can't be done without a change in primary custody. Should I consider doing the 50/50 primary custody? I feel reasonably sure he and I can make it work and this should leave it open if she decides to move back home to attend school. I personally don't want to give up sole physical custody but I am worried that if I don't do this, I could "lose" her heart because she wants to know him so much....HELP!
Brette's Answer: I think it might make more sense to try it out for a month first, before you change schools. Send her for August and see what happens. Then go from there.
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 whatever she wants. He allows her to have a boyfriend and she doesn't have to do any chores at his house. He's being the ultimate Disneyland Dad, 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. What can I do? 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.
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.
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: Children never get to decide. The decision is always made by the judge, or by agreement of the parents. For child custody changes to be warranted, 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. You may have to go to trial if he files for a modification and if so, ask that a law guardian or guardian ad litem be appointed for your son. If he has bribed your son, this will likely become clear during a trial. I think a judge would be reluctant to change custody at this point.
Paula's Question: We had an uncontested divorce, but I feel I was bullied into letting my ex have custody. I had no money for an attorney and wanted to get away as quickly as possible. Now, I'm remarried with a steady job and nice home. My 8 year old daughter expresses her desire to live with me every visit and I feel it's in her best interest at this time. There are 3 other children living in ex's home, and she is suffering emotionally and feels caught in the middle.
For the past 3 years I've been able to get my daughter every weekend and during school breaks...even though divorce papers say every other weekend. Now that I've filed papers....he won't let me see her except every other weekend. Do I have a chance here or am I wasting my money?
Brette's Answer: I've had cases like yours and the problem is the courts do not like to make changes if everything is going well. If your daughter is doing well in school and shows no outward signs of distress, there's not much reason for a judge to make a change. You do have a change in circumstances, with the changes in your life. You also must realize she may be telling you she wants to live with you and telling your ex the exact opposite. It is not fair to make this about what she says because she is then put in the position of disappointing and hurting one of her parents. If your ex has allowed every weekend visits in the past you have a very strong case to ask the court to put that into an order - to continue the status quo with that. It's important to ask for it and make it clear you simply want the order to reflect what had been the situation until you filed.
P's Question: I am 15 and have lived with my dad since I was 3, but I would love to live with my mom. My dad drinks a lot 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. 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. I'm sick of always having the feeling of that I'll never be enough (when I used to be his everything). I can't emotionally take this pain anymore. All I think about while I'm here is dying. Please help me I want to know how to change the custody and fast.
Brette's Answer: You need to talk to an adult you trust. Can you talk to your mom? Is there a teacher, coach or counselor at school you could go to? Maybe an aunt or older cousin? You have to talk to an adult who can help you through this.
You are certainly old enough to have a big say in where you live. 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.
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, and 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.
Liz's Question: We’ve been divorced about 5 years and our daughter is now 15. We have legal joint custody and my ex-husband is primary. Our daughter has taken a hard stance that she no longer wants to abide by the visitation schedule and is refusing to return to his home. He's now threatening contempt of court - and has requested incarceration, sanctions, fees, and so on. I can't afford a hefty retainer so I am requesting a court appointed attorney. In addition our daughter wants to address her desired schedule with a judge or to be heard through an advocate or her own lawyer. How do I proceed?
Brette's Answer: You do need an attorney and I'm glad you've asked for one. You may want to counter file for modification since that's essentially what needs to happen. Your attorney can request a law guardian or guardian ad litem be appointed to represent your daughter's point of view. Children of this age often are closely listened to by the court.
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 boy's life and has been gone for years at a time. He sees them every other weekend now, 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. What can I do? My kids are now 8 and 7 and often hide when he shows up or they leave kicking and screaming.
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. It would be very unusual for a judge to change custody so drastically and 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.
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 your child's best interest (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.
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.