Ask A Lawyer: How Do I Pursue Sole Legal Custody?

Question:

My ex and I have joint custody of our 10-year-old son. My ex lives in the state of Texas, and has visitations during school breaks. She is also living with a man that frightens my son when he is visiting his mother.

My son has seen his mother get hit and choked by her boyfriend, and he has been called names by this boyfriend. My son and his half sister have been locked up in a room by the boyfriend while he is outside working on his car. When this happens, it appears that my ex is not home to witness it says it’s not true.  She believes that our son is making this up because he doesn’t like her boyfriend.

My son does not want to go back to Texas due to this.  My ex also refuses to communicate with me regarding his medical needs: he has an orthopedic problem on his right knee, and has had several surgeries. She did not take part in any of them.

I want to pursue sole legal custody but I don’t know where to begin.

 

Answer:

Your question raises possible jurisdictional, as well as custodial issues. You do not indicate the state which established the custody in your case and it appears from your description that your son lives primarily with you, therefore it appears your state of residence is the state that will address your concerns.   You should consult a qualified family law attorney in your state to confirm the correct state of jurisdiction and the applicable law.

Your question raises two parenting issues, the joint custody (parental decision making) regarding your son and the visitation schedule with his mother. 

Your ex’s non-involvement in your son’s health issues and apparent lack of supervision of your son during his visits with her could be sufficient to terminate joint custody.  Generally, the court would then review the custody issue to determine which of you would be the better sole custodian.  As custody cases are expensive and the course of the case often unpredictable, you should review carefully whether her lack of involvement causes you problems in exercising your parental rights sufficient to warrant the time and expense of a custody case.

The schedule with his mother is a more practical issue.  Assuming there have not been any police or family services involvement to document the problems or any neutral adult witnesses to describe the situation, it appears your 10 year old son is the only source of information as to the described problems.  If there is objective evidence of the problem, it would presumably be located in Texas and you may have some difficulties and expense in getting that evidence before the court in your state.

Depending upon your son’s maturity and ability to communicate, you may be able to pursue the issues solely on his account.  If your custody order requires mediation prior to court proceedings, you may need to pursue mediation first.  If you are unable to resolve the issues in mediation, the judge may interview your son or appoint a lawyer or other professional to interview your son and report to the court.  If the impact upon your son is psychological, the court may order a psychologist to evaluate the situation, possibly at your expense which can be significant.

Of course, if you become aware of a serious, immediate issue while your son is visiting his mother, you should consult with your attorney as to contacting the Texas authorities for possible intervention.

 

Richard Coffee is a Litigation Manager in the Belleville Illinois office of Cordell & Cordell. He is an experienced divorce attorney whose practice is devoted to domestic litigation. He is licensed in the State of Illinois and is admitted to practice law in the U.S. District Courts for Northern, Central and Southern Illinois.

Mr. Coffee has extensive domestic litigation trial experience representing clients in courts throughout Illinois on all aspects of domestic litigation, including the representation of clients who are current or retired military personnel with issues under the Soldiers and Sailors Civil Relief Act and the Uniformed Services Former Spouses’ Protection Act, clients involved in state court jurisdictional disputes due to the relocation of one or both parties from or to Illinois, and clients with government or private pension benefit valuation and division issues. 

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