You are interested in filing for a modification of child custody because you want your child to live with you instead of your ex-spouse. A family law attorney can help you with this process, but probably will only take your case under certain qualifying conditions. The main factors involve a noteworthy change in your ex-spouse's circumstances and whether your obtaining sole physical custody would be better for the child.
Changes in Circumstances
For your modification petition to be successful, the court must view the changes in circumstances as fundamentally negative for your child. This means you can't expect to gain sole custody simply because you don't like it that your ex is getting married again or is moving to a different town.
Some changes in circumstances that might qualify for a custody modification include your ex-spouse:
- having developed a substance abuse or gambling problem
- getting romantically involved with an ex-convict
- allowing your child to be unsupervised a great deal of the time
- developing a disabling health condition
- planning to move far enough away that your visitation would be limited
In some cases, you must provide evidence of the circumstances. For example, your ex may keep a substance abuse problem well hidden, and you may only suspect this is going on.
Best Interests of the Child
Courts tend to favor the parent who currently has custody because they view consistency as ideal for children. The disruption caused by moving in with the other parent is viewed as detrimental unless you can provide substantial evidence it would be best for your youngster. In legal terms, this strong basis of proof is known as "clear and convincing evidence."
You must view the situation as objectively as you can to see it through the eyes of an impartial judge.
For example, you may be uncomfortable with your ex allowing a serious romantic partner to move in. However, that doesn't mean this change in circumstances actually is bad for your child. You might approach this as a moral issue, which would be especially pertinent if you have a strong moral background and have raised your child in a religious faith.
If your ex doesn't have noticeable changes in circumstances, then negative changes in your child's behavior may constitute evidence that he or she would do better living with you. Poor academic performance from a child that previously did well is an example. However, a judge would expect you to wait a certain amount of time after the divorce before using this as a reason for custody modification. The child may only need time to adjust to the divorce.
The Child's Preference: A Possibility
If your youngster is a preteen or teenager and has expressed a definitive interest in moving in with you, this may be a reason for a judge to decide in your favor.
The judge will take into account your youngster's motivation and your efforts at persuading the child, however. For instance, the American Bar Association notes that showering a child with extravagant gifts can be a way to lose a custody modification request.
Important Points of Caution
If you file for a modification, you probably will create a contentious situation with your ex-spouse. If you aren't successful, you may have to deal with some consequences. For instance, if your ex typically allows some leeway in the visitation schedule, that flexibility may vanish.
Also, some problems may be easily resolved. If you think your child doesn't have enough supervision while your ex is at work or socializing, for instance, hiring a babysitter is an easier solution than moving the child to a different home. If you take your ex to court over an issue like this, you risk damaging whatever goodwill the two of you have, and your petition probably won't be successful.
What This Means for You
Carefully consider whether your intent in obtaining sole custody is honorable and in your child's best interest. If you want to pursue the modification, contact a family law attorney to start the process.