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Mother threatens to go for sole custody after joint custody father expresses concern about child's poor school performance

Your Question:
My husband and his Ex have joint legal custody of their daughter with a parenting agreement in place that states that they will discuss all school, medical and other important things involving the daughter. Mother has daughter durnign the week and we have her most weekend and vacations. (we are in MA) Over all it has been working ok, daughter is 12, approaching 13. This school year has been a struggle for the daughter. My husband and I went to meet with the primary teacher after the first bad report card - the Ex did not show up and also failed to make the second meeting the teacher arranged. The teacher reccommeded that we try to get the daughter so spend more time studing and doing her home workbut since we do not have her during the week there was little we could do other than talk to the child and explain that she would be in danger of staing back if she continued on this course of not putting any effort into school work. Yesterday we got the most recent progress report and all of the grades have gone down. Husband called the mother and left a message stating that he was the report and since the grades did not go up it was time to have a meeting with all of the teachers to try to help thier daughter. The Ex flipped out and left a message back that she has had it with him trying to tell her how to raise "her" daughter and to stop upsetting the daughter by telling her she will stay back. (staying back is not something a parent can just do - the school is responsible for this) She then pronounced that she is now going to take him back to court to get full custody so that he will have so say in any school matter. Can she do this since really there has been no material change in circumstance?

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My Answer:

Thanks for writing.

I wouldn't necessarily agree with you that there has been no substantial change in circumstance.

I witnessed my own judge (in a case preceding mine) change custody based solely on the child getting D's and a couple F's in school. After hearing both sides argue for approximately 15 minutes, the judge announced that clearly Dad was unable to help the child with school, given the report cards. He said that he didn't know if Mom could help either, but he was going to give her the chance. He switched custody from Dad to Mom, based ONLY on that issue, and at the mother's request based ONLY on that issue.

I don't know if your stepchild's "struggles" mean that she went from straight A's to now B's. If that's the case, the judge won't see it as alarming. But if she's truly performing so poorly as to potentially be held back, I think it's reasonable to say this is a significant change of circumstance.

So, how to approach it?

First, take that message that the mother left, and spend a couple hundred bucks to create a certified transcript of it. Just look in the phone book under "court reporter" or "transcribe" and pick someone close to you. Typically, they'll have a minimum fee (i.e., that's what you'll pay, even though the transcript will only be a page or two long). A certified transcript can be used as a credible exhibit to the father's motion to change custody.

Second, see if the teacher would be willing to write an affadavit (i.e., sworn declaration) that supports the father's greater role with the child during the week. Unless the teacher has adamantly stated the mom should lose custody, don't put the teacher in the position of attacking the mother. Something akin to noting the father's ongoing concern with the child and the father's limited ability to help on weekends has the teacher convinced that it would help the child tremendously in school. Then the father can also use THAT as an exhibit to his motion to change custody.

Third, you've got the report cards / progress reports. That's the final exhibit needed for the motion to change custody.

The burden is really going to be on the mother to explain to the court why this child is not doing well in school. The judge won't care about the father's attempt to discuss school with her. It would be a BAD parent who doesn't express concern to the other parent about a child's struggle in school. The judge will find it very reasonable that dad is trying to get some movement here, to help the child, provided it all happened as you described.

If your finances allow it, I'd suggest that you retain an attorney and go for a modification of the parenting schedule. He doesn't need to get sole custody on this, because the father already has the ability to work with the school. So, you'd keep joint custody. However, he should come up with a parenting plan wherein he's much more available to help with schoolwork. If it's a 180 reversal from the current parenting plan (i.e., mother and father switch their respective custodial periods), so be it. Or if it's something new, where child is with the mother one or two weekdays, and then weekends are split between parents... it's really up to Dad to figure out what makes the most sense in the interest of this child.

If you have an attorney, you'll have a much better shot at prevailing. If it were MY case, I'd pursue it as I suggested, and I wouldn't wait around until she fails a grade. I'd be doing it now.

The mother has made it clear that she isn't interested in working with the father. So, he doesn't need to threaten or make ultimatums (i.e., as she did). He just puts his case together, files, and let her be served with it.

She can explain to the judge why this kid is struggling under her care, since she ain't interested in discussing it with teachers or the father.


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.

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