Changing the primary custody of a child generally requires a change in material circumstances of either the child(ren) or a person affected by the original custody order. Additionally the change sought must be “in the best interest of the child”.
Determining a change in material cirumstances requires first that you establish the circumstances of the child(ren) or the persons affected by the original custody order at the time that original order was entered. That is your “baseline” against which to measure the change.
After determining the baseline of circumstances, then you must determine how the circumstances have changed. There is no magic list of what those changed circumstances must be. The changes could be in the health or employment situation of the primary custodian of the child. A job transfer, working longer hours or a need to travel in employment could be a “material change” in circumstances. Counter-productive behavior by the other parent, if new since the prior order, may be a material change in circumstances. These could be addictions, criminal behavior, misbehavior, neglecting or abusing the child, heath issues (mental or physical) may be material changes.
Behavioral problems with the child may be “materially” changed circumstances. Issues with school attendance, grades, truancy, drug or alcohol use may be materially changed circumstances.
Find a competent family law attorney. Discuss the situation with that attorney. Start documenting the instances where you can show the changed circumstances. Make a list of people who are aware of the circumstances and how they have changed. This list could include friends, co-workers, teachers, health professionals, counselors, pastors—anyone who has observed the changes. If you merely discussed the changes with these people, they have no independent admissible knowledge of the actual changes. Their testimony would be limited to the fact that you discussed changes with them—not that the changes had actually occurred.
Determine how the situation could be improved if the change you want to make would actually happen. Courts don’t change custody for the mere sake of change.
The change you seek must be an improvement which would be in the best interest of the child. For example, if your ex-spouse has primary custody of your children, but the children aren’t doing well in school and are frequently absent; you might think that changing the primary custody to you would be a positive improvement and in the best interest of the children. But, what if your business requres you to travel overseas several times a month for a week or more, what do you do? Who would care for your children when you travel? Who would insure the children did their homework, studied for their exams, and got up in the mornings to go to school?
What if you are in a relationship and have step-children in the house? What if the step-children have behavioral problems? Would a melded family work? Or would it create more problems? Think about the situation that would exist if you did change the custody.
Occasionally there is no good answer to these situations where the cure is as bad as the disease. Don’t restrict your search for advice to only attorneys. There are licensed professional family counselors, psychologists and other consultants available.
If you do decide to seek a change of custody, try to discuss it first with the other parent. He or she might be aware that a change is needed. If a discussion won’t resolve the issue, then hire an experienced attorney. Remember, even if you and the other parent can agree to a change of custody, it must be memorialized in a court order to be enforceable and valid. Side deals between parents don’t count if one or the other changes his/her mind and decides to go to court.
If you do want to fight a change of custody, there are a variety of tools and legal strategies available to you. Psychological examinations of the parties and the children, custody evaluations by third party professionals, social studies of the living arrangements at both homes, interviews of the children by the Court (Judge) with or without attorneys present, amicus or ad litem attorneys appointed by the Court to assist with the children’s side of the case are all available. Yes, the children may have an attorney appointed to represent them in custody litigation. That attorney may be either an attorney ad litem or an amicus attorney (what I call an attorney ad litem on steroids).
The tools and legal strategies do cost money. Remember a change of custody can turn out to be a full blown war rather than a skirmish. Plan for war and hope for a skirmish. You cannot successfully fight a war cheaply. Talk to an experienced attorney. Figure out a budget. Use the tools you need, not all the tools you want. Of all the tools, I’ve found an amicus attorney to be the best bang for the buck in custody litigation. The other tools are “nice to have” but the amicus is essential; especially, if you can get the amicus on your side of the case. That way you can double-team the other attorney.
Tyler Moore is Board Certified in Family Law and Board Certified in Civil Trial Law. He also is a member of the Texas Board of Legal Specialization. Focusing on two areas of law, Tyler Moore can represent you and help you with your divorce. Tyler practices family law at O’DONNELL, FEREBEE, MEDLEY & KEISER, P.C. To contact Tyler, please email him at Tmoore@ofmklaw.com.