Advice from someone who has been in your shoes
  Search entire web
Supervised Visitation Directory
Return to list of questions Return to topic groups
At 1 year anniversary of divorce, mother wants to modify custody - does she have enough?

Your Question:
I was married for 11 years and will be divorced for 1 yr on July 1st. My ex is a very controlling and psychologically and emotionally "full of crap" person. But a choir boy to any stranger/neighbor.

During the divorce I lived in "our" home until things were pretty much hammered out and then lived with relatives (the kids were with me) until things were final to buy a house. I agreed to 50/50 everything, with him paying for medical insurance even though I have the kids every night due to him working nights (I was a much more fearful person then and he is VERY attached to his money).

During the school year or approx. 10 of 12 months of the year it turns out I have the kids 200+ hrs a month more than he. During one month of the summer he came out 8 hrs more than I. He takes the kids for approx. 2 hours after school during the week and every other weekend. I have them the rest of the time. During the summer break he also has them from 8 am til about 6 pm. At the time of the divorce he was sure to prove he would have the kids 50/50 b/c there was nothing to prove otherwise and threatend to take full custody. He is a workaholic! I started documenting last Sept. how he would not even have the kids for a month other than the every other weekend during Harvest.

Beginning Jan 1st I started to chart the exact times we have the kids and have kept that to date daily. Along with that I have kept a Journal stating the bs and daily occurances.

Last July I did get an DWI after a wedding I had attended. Its over and on my record. I also have a boyfriend (met the month the divorce was final and began dating) that owns his own house but spends alot of the time at mine. These are the 2 things his attorney has brought up against me.

On the other hand he doesn't give our son his ADHD medications, has had MANY girlfriends that he has met over the internet and my kids can tell you all about that. He didn't attend teacher conferences this year except one to see that our son was actually improving from the ADHD meds (he believes the improvement is from a talk he had with him)and he skipped out on our daughters that was that same day. On his weekends he never has the kids do their homework. I never know what time I am picking up or how long I will have to wait for them to come home. I never get the clothes home that I send with them even though they dress daily at my house. My daughter comes home picked on to the point of exploding (the emotional crap). There is just so much to list. Basically the "flexible" statment in the dissolution works well for him and screws me.

I have decided to try and modify the dissolution to have physical cutsody and receive child support (I get nothing now). He has the kids approx 60 overnights a year and the 2 hours a day, I don't plan to change the visitation. I am sticking to my guns but am nervous about proving the material / substantial change in circumstances, do you have any pointers or pros and cons I should be thinking of?

Need a Supervised Visitation Provider?
Try the Supervised Visitation Directory - Over 1500 providers listed by state.

My Answer:

I don't think you have enough to change custody. To be clear, custody is a legal term meaning which parent has the authority to act on behalf of a child and make decisions on behalf of a child. Visitation is a legal term that discusses when the child will be in the care of each parent.

Most parents have joint legal custody. Some parents have sole physical custody, and some have joint physical custody.

In most state, in order to change custody, you need to show a substantial change in circumstances that warrant it as being important for the welfare of the children. As you yourself suspect, you're wondering if you have enough. I don't think so (but I'm not an attorney).

On the other hand, you can return to court, keep custody the same, but ask to modify many other orders to address the issues going on right now.

Of everything you outlined, here are the relevant issues:

  • You got a DWI in the past year.

  • The father doesn't help the children with homework on the weekends (only relevant if the teacher has recorded this).

  • The father's parenting schedule is inconsistent and constantly leaves you guessing as to when you should be taking care of the kids.

  • The father may be neglecting the child's health by refusing to administer medication.

So, what do we do about this?

  • Pray that the judge will forgive your DWI (forgiveness is unlikely if you've previously been convicted of drinking and driving).

  • Get orders requiring parents to administer prescription medication as recommended by the child's pediatrician and/or mental health professional.

  • Get orders for a specific parenting schedule (i.e., including an altered schedule for summertime), based upon organized journal entries demonstrating what it has been since January 1, 2006. Included in the orders for a parenting schedule, have a clause stating that the receiving parent shall waive his/her parenting time if more than 30 minutes late for an exchange without advanced notice.

I suggest you not worry about child support right now. Get through this matter. If the court orders a specific schedule, you let it sit for a little while, and thereafter you return to court to establish child support.

If you try to include child support in this action, you'll likely face fiercer opposition.

Quit focusing so much on the boyfriend/girlfriend thing. Unless the kids witness inappropriate sexual behavior, or unless a companion is dangerous; it's irrelevant in child custody matters. Judges won't care, and it just makes you look obsessive.

Since you don't have the most refined sense of what really matters to a court, I strongly suggest you take a look at the books I recommend. Reading through one of them should be very enlightening for you, which will help you craft a better argument in court.

Above all, keep the kids' best interest in mind. Make decisions from that perspective, and argue in court from that perspective.


This website gives common sense advice that is not intended to act as legal guidance nor psychological guidance. The author is neither an attorney nor licensed psychologist. For specific legal guidance or specific psychological guidance, consult with a licensed professional.

© 2005 ~ 2012 All Rights Reserved.