By: Marilyn Gale Vilyus
You can make changes regarding the custody of your children if you have an agreement with the other party. Under most circumstances, one year needs to have passed from the date of the preceding divorce decree or order which established the current custody arrangement. Of course, there are sometimes exceptions to this rule if the change is in the best interest of the child.
The request is always filed in the same court in which the previous order was granted. It is a "modification" suit. You should discuss with an attorney whether or not the reasons for your desire to change the existing order will qualify for a new court order such as how long the child has been living with you -- if that is the basis of your modification suit.
Generally, the Court requires a significant change in circumstances of the parties or the child. A modification suit will also be granted if the person who has custody or visitation rights is convicted of either family violence or child abuse.
As stated above, custody changes can be considered one year or more after the previously signed order. This requirement prevents a parent who did not get primary custody from immediately filing a new lawsuit and keeping the parties continually in court.
If there is an emergency, the case can be filed before the passing of one year, and, in this case, a sworn affidavit detailing the circumstances is needed.
If your child is twelve years of age or older, he or she can sign an affidavit stating that he or she wants to live with the other parent. If a child who lives with you expresses this desire, it is important to let them know that this is a very important decision and is not one to be taken lightly. You should advise them to think about this decision very carefully. You want them to know that, whether they end up liking it or not, if they move in with their other parent, that is where they are going to stay!!!
Even if the parents agree, it is up to the Court whether or not to approve the agreement. The Court will deny the request if it does not feel that the change is in the best interest of the child.
If your child wants to move "to your house" but the other parent does not agree, your case may go to mediation or possibly to trial. An attorney for your child is usually appointed to help the Court make a decision. Usually, both parents pay for the cost of this "amicus attorney." They may split the cost evenly, but sometimes one parent may be ordered to pay more of the cost than the other -- or even the entire amount.
If your child is already living with you but the other parent still has "legal custody," you can get custody changed after filing a modification suit if the child has been living with you for a minimum of six months. Please note that most of the time, both parents have joint custody. The specific right which is being changed is that normally only one of the parents has "the exclusive right to determine residency of the child."
If your child's parent has filed a suit against you to change custody, the amicus attorney will begin an investigation which will include assessing the child's success at school as well as their attendance and punctuality. She will look at your parental skills in a variety of aspects, including your responsibility regarding the medical care of the child. She will consider the emotional and social needs of the child, and will interview family members and friends. Any new spouse and/or "boyfriend" or "girlfriend" of yours will also be under scrutiny!
Of course, if your new "significant other" has any issues regarding alcohol, drugs or violence, this will have a large effect on your case. In certain cases, you may be asked to choose between your new relationship and custody of your child!!!
Please feel free to call us at 281.550.6650 to arrange for an attorney consultation.