One of the most frequent questions that fathers have is when should they try to get custody of the kids back? Do they have to wait a certain period of time? Do they have to prove mom is “unfit” to get custody? When can they go to court for their children? When is the right time to enforce a father’s rights to custody?
Each state has its own rules for when a modification of custody can be filed. The purpose of this article is to provide a general framework of what you as a non-custodial father should be looking for, and working toward, to make your request for custody that much stronger.
Many states permit a modification if circumstances have changed. Each state has a statute or statutes that list the factors that you must prove, in order for the Court to consider changing custody. One important point to remember is that there is usually a presumption that the custodial parent will keep custody. A pleading to modify custody is NOT a “do over” of the initial (or last) custody. You need to consider THIS when trying to settle your divorce.
Generally, at the hearing, the Judge is going to want to see 2 things: why the kids need to come OUT of the other parent’s house, and why your house is okay for the kids to go IN to. That’s it in a nutshell. The details and factors for the court to consider are spelled out in detail in your state’s statutes and caselaw, and these can be used by your attorney to set forth the best case. But keeping this two step process as a guide can help you prepare to request a custody modification, an d can help you keep an eye for the types of changes that could support a request for custody modification.
Let’s look at these individually. Step 1: why the kids need to come OUT of the other parent’s house. This doesn’t mean you have to prove her unfit, and certainly you never make false allegations against her. But you must show that something in her household has changed, and now your kids need to come out. It could be her new boyfriend. It could be that her drinking has increased. It could be that she has moved frequently, or changed jobs frequently, or changed boyfriends frequently. But your focus for this step is what is going on in her home, and why it’s bad or harmful to the children. Oh – you don’t need to wait for the kids to be harmed.
Step 2 is that your house is okay for the kids to come into. That means that you may need to clean up your act. Let’s say that you prove that mom’s drinking has increased, and the kids are threatened by it. But she shows that your pot smoking has never stopped. The Judge could easily decide to take the kids out of her house, but not put them with you. Now where are they? Or say you prove that her boyfriend has a violent temper, and the Judge decides to remove your kids from her. But the evidence shows that you have moved 6 times in 7 months, and have had 4 jobs during that time. The Judge may feel that you are too unstable to have the kids. So carefully examine your situation, and make any changes that your lawyer (or custody evaluator) recommends.
So when should you change custody? When you can successfully show both steps. This means that you have to keep an eye on her household. Don’t stalk her. But talk to her friends. Listen to your kids. VISIT your kids. Communicate with her. Hire a private investigator, if necessary. But be aware of the household and of the atmosphere in which your children are being raised. And don’t hesitate if you think that atmosphere has changed for the worse.
Again, your case must be presented according to your state’s custody modification statutes. And it must follow your state’s rules of civil procedure. But by keeping the above 2 steps in mind as you and your lawyer are preparing the case, it should make the presentation clear to the Judge that custody should be modified and changed to you.
