Home > divorce modification, family law general, paternity/child custody > Modifying Child Custody (Yes you CAN.)–Part III

Modifying Child Custody (Yes you CAN.)–Part III

Kids need their moms. . .

All right.  The first two child custody modification posts on this blog were depressing, I’ll admit.  DAMN depressing.  The intent there was not to discourage you from trying, however, only to encourage those who may be going through a divorce now to buck up and do it right the first time.  There are a whole host of reasons–good reasons, I might add–that people give up on custody in the original divorce.  You may not have a place to live now that you’re no longer married.  You may have been going through some sort of personal trauma and felt you could not handle being a full-time single parent.  You may have felt, truly believed, that it was in your child’s best interest at that time to remain with the ex.  OR you could have been married to a big fat bully douchebag who just unilaterally hucked you out and selfishly kept everything for himself, including your kids, even when he had no business pretending to be the primary caregiver.  Bullies suck, in all their derivations.

. . .AND their dads.

You might have had the misfortune of being married to one, and then divorcing one as well.

There are a whole host of excellent reasons, that rise to the level of substantial change in circumstances, that legally justify modifying child custody down the line.  Here are a few:

1)  The custodial parent is abdicating full-time care of the child to a third party (also known as the Legal Stranger.)  Anyone who is not a parent does not have custodial rights to your children.  If your ex has remarried, and is now traveling the world extensively for work, leaving the kids in the care of a stepparent, you have the legal equivalent of your kids being raised by a Legal Stranger.  You should already have rights of first refusal in child care.  If you have the kids with you more often than not because the ex is out of town, you have a substantial change in circumstances.  (NOTE:  This does NOT mean that the custodial parent works a regular job and the kid is in daycare during a regular workday.  This means GONE.  Out Of Town.  Or the equivalent.)

Not all Stepmothers are Wicked, but they're all Legal Strangers.

2)  Closely related to #1:  The custodial parent is in jail.

3)  The custodial parent is simply NOT parenting.  For example:  Custodial parent in a divorce works out of town sporadically, but is gone more often than not.  The teenage child is being expected to get himself to school, on his own, every day, and begins missing school.  A LOT–Like, 30 days in a trimester.  Non-custodial parent (hereinafter “NC”) should intervene at some point prior to filing a petition to modify, but allowing this to spiral out of control in a very very very bad plan.  Or the child is young, and is consistently not bathed, fed, put to bed on time–these sorts of things.

4)  If the custodial parent is emotionally unstable and has attempted suicide, or has been hospitalized for mental health reasons recently, you should be petitioning to modify.  Living with this sort of emotional chaos is also NOT in the best interest of your child.

5)  The custodial parent consistently interferes with the NC’s visitation.  This can take many forms.  It can be refusing to give the NC parent right of first refusal in child care.  It can be calling incessantly when the NC is exercising parent time.  Or consistently failing to inform the NC parent of events in the child’s life, like school things, or illnesses/medical emergencies, etc.  It can be a custodial parent repeatedly pulling the NC’s visitation at random, for no reason, or poor reasons.  Courts do not like this type of behavior.  It’s not in the best interest of the child (and remember, that’s what the court is all about.)

6)  The custodial parent is telling the child that the NC parent is a bad person, should not be loved by the child, or other name calling directed at the NC parent in the child’s presence.  Kids are like little sponges.  If a parent is discussing legal custodial issues with a kid, it can be very damaging to the child.  At the very least, a Motion for an Order to find the custodial parent in

. . .can really suck, even when the other parent doesn't constantly throw you under the bus with the kids.

contempt of court for violating (what is always boilerplate language in a divorce) decree should be filed to remediate the situation.

7)  The child is actually being abused.  ACTUALLY.  If this is the case, RUN, don’t walk, to your phone and call the Department of Children and Family Services (or your state’s equivalent)–in Utah, aka DCFS.  You need to do this for a few reasons: 1) DCFS has the authority to remove a child from an abusive home situation if there is actual evidence of abuse, and if the child is in danger of continued abuse; 2)  Even if they don’t remove the child, you’ve created a paper trail with DCFS that can be referenced in a court custody modification action; 3) If you actually believe your child is being abused and you do NOT report, you can be charged with child endangerment/failure to protect/some other nasty thing wherein the state charges you for allowing the abuse to continue.  (BIG NOTE HERE IN ALL-CAPS: DO NOT CRY WOLF WITH DCFS.  They can make your life a living hell.  You could traumatize your child as they go through an unwarranted investigation.  The court will see you for the jerk you are.  I REPEAT:  ONLY REPORT TO DCFS IF YOU ACTUALLY BELIEVE THAT YOUR CHILD IS BEING ABUSED.)

#8) The custodial parent relocates a long ways away, and the only reason for the move that’s apparent is so that they could keep the NC parent from seeing the child.  This is closely related to #5 above.  Regardless of whether you petition for custody, the NC parent should petition to modify, as just about any child custody/visitation scheme is going to be difficult at best to live by when one parent is far away.  NOTE:  If your divorce decree/custody order addressed relocation within its original terms, this may not  suffice as a substantial change in circumstances, because it would have been legally cognizable at the time of the divorce–see the previous posts about the standards to modify. Again, the intent of the parties is going to determine whether this warrants modification.

If you’re dealing with any of these particular circumstances, you need to be writing this stuff down.  Document it.  Keep a log, with dates and times, showing that the custodial parent isn’t parenting/is out of town all the time/refuses to allow you visitation/etc.  The court is going to need some evidence of what you’re telling them is happening.  A journal/log/calendar is admissible as evidence in court.

Finally–Be Brave. Modifying child custody can be daunting at best, and scary for those of us who’ve divorced bullies.  Don’t let that fear prevent you from acting.  You are a parent.  You have rights in relation to your children.  You have kids who are looking up to you to make their lives better.  Do it NOW.


The sooner the better.  Because the longer a child custody order remains in place, the harder it is to change it.  Think in terms of the best interests of your children.  You can do it.  We’re Tough.  We Do Hard Things.  Don’t let fear keep you from doing what you legally need to and should do.

Oh–And get a lawyer.

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