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Modification Of Child Custody Orders

Courts are loath to disrupt the status of a child's custody situation. Laws typically prohibit any modification within a year of the divorce unless the child's health is in danger or the custodial parent has let the child live with the other parent for most of the year.

Custody orders can be modified if there is a substantial change in the life of the parents or the child. A substantial change of circumstance means that new facts have arisen that would have changed the court's previous custody decision. Additionally, laws often allow children of a certain age to choose where they want to live (which, in essence, determines the custodian).

My son's grades have dropped ever since he has lived with my ex-wife. Can I get custody changed?

Not on that basis alone. You must be able to show the court some facts that would have persuaded the judge to place the child with you, if they existed at the time of your divorce.

My former husband has started drinking again. Will the judge let the children come live with me?

Yes. Based on changes in your husband's lifestyle, the court may decide that it is in the best interest of the children to have you appointed as the new primary custodian. Your husband's excessive drinking poses a physical and emotional danger to the children.

My ex-wife has not established regular mealtimes for my son, he is constantly ill, was injured on the playground while he was unsupervised, and he is left with teen-aged baby sitters routinely during the week. Can I get primary custody?

Yes. While each fact alone may not be enough to warrant a modification in the custody order, as a whole the situation equates to a change of circumstance.

SIDEBAR: Although modifications require a change in circumstance, sometimes the usual living arrangement is so inadequate and harmful to the child, he or she may be placed with the other parent.

My ex-husband spanks our daughter. Is this enough to allow me to get primary custody?

No. Unless your child is in physical danger, your husband's disciplinary methods alone are not enough for a modification. However, spankings or any other type of discipline that leave a permanent injury on a child, such as bruising, rise to the level of "physical danger."

I was arrested for drunk driving. Am I going to lose custody of my children?

No. A parent does not automatically lose custody if he or she is arrested or even convicted of a crime. To obtain a modification, your ex-spouse must prove your children's physical and emotional health has been adversely impacted or that they are in danger. For example, if they were in the car with you when you were driving under the influence and if there is evidence that this was not an isolated occurrence, the judge may modify custody.

The court modified our custody order and now my ex-husband is the primary custodian of our daughter. Does this mean I have been found to be an unfit mother?

No. The court does not necessarily make a finding that the parent who did not receive custody, or even loses custody, is unfit. The court's determination is based on the best interests of the child. The facts may show you in a bad light; however there has been no official adjudication that you are an unfit mother.

My husband has adopted a religion that does not celebrate birthdays or holidays. Can I change custody so that I am the primary custodian?

No. You may not agree with your husband's religious practices, and you may even think they are "weird," but his new religion does not substantially change the circumstances. The children can always celebrate birthdays and holidays at your home.

My son turned 12 and wants to live with his father. Will the court abide by his wishes and modify custody?

Yes. Laws permit the court to give a preference to a child's wishes when the child reaches a certain age, can articulate his reasons, and his best interests will be not be adversely impacted.

TIP: The child must officially contact the court in writing, notifying the judge of his preference.

I've sobered up, obtained a great job and just purchased a new home. On the other hand, my ex-wife, who has custody of the children, has grown depressed, reclusive and uncommunicative. Can I get custody modified?

Yes. The combination of the improvements made in your life and your ex-wife's decline has created a substantial change in circumstances permitting the court to give you primary custody of the children.

Moving out of State

Child custody orders routinely prohibit the custodial parent from removing the child from the state. Since the move greatly affects the child's relationship with his other parent, under some laws the court has the authority to prohibit the move.

Courts typically rely on four factors before allowing the child to be moved:

  1. whether the move will improve the quality of life for the child, as well as that of the custodial parent;
  2. evidence of the absence (versus a presence) of the desire to defeat or undermine the child's relationship with the non-custodial parent by moving away (in other words, the custodial parent isn't moving to another state just to get back at the other parent);
  3. the objections, if any, of the noncustodial parent (who may not object since his support obligation will lesson if the financial prospects of the ex-spouse improve); and
  4. the ability to compensate for the move with extended visitation periods.

Can the court really prevent me from moving out of state with my child if I've been transferred?

Yes. The court is concerned with the best interests of the child, which include an ongoing relationship with the non-custodial parent. Unless the four factors listed above are present, you may not be allowed to move with the child. You can, of course, pursue your job, if you agree to leave the child in your ex-spouse's custody.

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