If the mother is not there for her scheduled parenting time, can I modify custody?

Question:Cordell & Cordell attorney Andrea Miller

My husband currently has visitation rights and his ex has sole legal custody. For 6 weeks now, my husband has not been able to talk to or communicate with his ex because she is always avoiding him. Relatives are the ones who always coordinate the drop offs and pick ups. The judge allows grandparents to help with transportation, but we know the kids are only seeing the grandparents since the mother is never home.

We feel that if she isn’t around to see the kids, then we should have full custody of them and let the grandparents have some visitation. Right now it feels like we’re splitting parenting time not with the mother but with the grandparents! Is there anything we can file with the judge to modify this situation? At what point is it considered child abandonment if the mother is never around during her parenting time?

 

Answer:

Unfortunately, I am not licensed to practice law in Arizona.  I am only licensed to practice law in North Carolina and therefore my analysis of your question will focus on North Carolina law.  Please consult with an Arizona lawyer to advise you on how Arizona law would deal with your question.

In North Carolina, you would have a couple of options.  In North Carolina, like many other states, we have what is called a “motion for contempt.”  This motion allows the parties to come into court and show the court that the other party is not abiding by the agreement.  The other party must prove to the court that her noncompliance with the Order is not willful and that she is not able to comply with the Order.  It seems that in the situation you are describing, she is not complying with the Order.  In North Carolina you could have her brought into court.  She would then have to testify as to why she is not complying with the Order. If she lies on the stand, then she has committed perjury. You can also subpoena her work records and see what she has been doing at work and subpoena the grandparents to testify. This would all be evidence of the ways in which she is not complying with the Order.

Another avenue, available in North Carolina is a change of child custody. North Carolina allows a party to change child custody upon a showing of “substantial change of circumstances.” However, the time period that North Carolina looks at is from the time the first Order was entered to when the Motion for Modification of Custody is filed.  Depending on the circumstances, this may apply. More facts would need to determine whether there is a substantial change of circumstances.

Abandonment, in North Carolina, is defined as willful or intentional conduct to forego all parental duties and relinquish all parental claims to the child or willful neglect and refusal to perform the natural and legal obligation of parental care and child support. One must prove that she INTENDED to forego her duties. This standard is high and without more facts, I am not at liberty to speak as to whether or not abandonment applies in this instance.

Once again, I am only licensed to practice law in North Carolina. Please contact an attorney in Arizona for how your state would handle your issue. Please be advised that this does not constitute an attorney-client privilege.

 

Andrea Miller is a Staff Attorney in the Charlotte, N.C., office of Cordell & Cordell where she practices domestic relations exclusively. Ms. Miller is licensed in the state of North Carolina. Ms. Miller received her undergraduate degree in History and her Juris Doctor from the University of North Carolina at Chapel Hill.  While in law school, she on the Client Counseling Team for Moot Court and became a board member. Ms. Miller also participated in UNC’s Legal Assistance Clinic whereby she helped represent indigent clients obtain legal counsel primarily in the area of domestic relations.

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