The email from the father read, “You handled my divorce 10 years ago.  My wife has custody of my 15 year old son who now wants to come live with me.  Can custody be changed after the divorce?”

“Yes,”  I replied.  “The easiest way to do it is to prepare an Amendment to the Separation Agreement and a Consent Order for the Court which incorporates the Amendment.”

“What is she doesn’t agree?”

“Then we can ask the Court to decide by filing a Motion to Modify Custody.  We will also ask the Court to recalculate child support based on the new custody arrangement.”

by James J. Gross

One thing I learned in cub scouts and boy scouts was always leave the woodpile a little higher.  Sometimes we camped out at campsites that had a woodpile.  If you used some of the wood for your fire, you were supposed to replace it and add a little more than you took for the next camper.  By extrapolation, it also meant leave your campsite cleaner than you found it.

I thought of this as I was picking up my teenage sons’ clothes off the floor of their rooms, turning off the lights they left on, and putting their dishes in the dishwasher.  No matter which one of them I ask, it is always the other one that did it.  My comeback to them is going to be – leave the woodpile a little higher.

As I start work this morning, my thoughts turn to the clients I’m helping as they struggle through their divorces.  It occurs to me that each of us, as we pass through life, whether helping others through our work or raising kids, can leave the woodpile a little higher.

 

by James J. Gross

You can get custody of minor children in a divorce but not a pet in Maryland, DC and Virginia and most other states.  The law views pets as personal property, with no more rights than a table, chair or lamp.

But if you live in Alaska, divorce court judges are now required to consider the well-being of the pet under a new law.  The court may award custody of a pet on the basis of what is best for the animal, not the human owners.

The law also allows judges to include pets in domestic violence protection orders.

We warned in Changing Child Custody that it was hard to know in a close case whether a material change in circumstances would warrant a change in child custody until the judge decides. This post reviews changes not material enough to modify custody.

In Changes in Circumstances Mean Changes in Custody we provided a list of changes compiled over the years that were “material” enough to result in a change in the custody agreement or order.  The list included “A combination of changes over the years that make the current custody arrangement unworkable, difficult or very much less than ideal.”

A recent Virginia case, Friedichs v. Brown, highlights the problem.  Mr. Fredrichs argued  that the following changes in circumstances warranted a change in custody:

(1) the children’s development had evolved,

(2) the children had a closer relationship with him, and

(3) the mother was being uncooperative.

The circuit court ruled that these were not material changes, dismissed his complaint, and awarded the mother $43,462.20 for the attorney’s fees she incurred defending.  The Virginia Court of Appeals affirmed.

Sometimes you don’t know whether a change in circumstances is material until after trial when the judge rules.  Perhaps this will help.  Here is a partial list, compiled from our cases over the years, of changed circumstances that courts have found, or both parents conceded, were material:

  1. One parent wants to relocate with the child.
  2. One parent is relocating without the child so the current timesharing or visitation schedule will not work.
  3. The parents share physical custody equally, live in different school districts and the child is nearing kindergarten age.
  4. One parent’s mental health has deteriorated
  5. Remarriage of one parent if it affects child-rearing.
  6. Substantial change in employment location/hours of work.
  7. A combination of changes over the years that make the current custody arrangement unworkable, difficult or very much less than ideal.

If one or more of these changes are present and the current custody arrangement is no longer in your child’s best interest, it is time to seek a change. Start by communicating this to the other parent and inviting feedback.

If you don’t make progress with direct discussions, consider suggesting that you and your former spouse work with a mediator skilled in child custody matters. Custody disputes are well suited for resolution through mediation. Also, look at the dispute resolution procedures, if any, in your custody agreement.

A good family lawyer or divorce attorney experienced in custody matters will be helpful to you throughout this process and will be essential if you bring your custody matter to the court for resolution.

Changing child custody is a special case in the law. Most lawsuits end when the parties settle or the court decides the case. If you are disappointed you can’t return to court and sue the same person over the same matter. Courts and lawyers would say your second attempt is barred by the doctrine of res judicata – a thing decided.

If you and the other parent agree or the court orders a certain custody arrangement and things change – you can sue or be sued by the same person for the same matter.  The law recognizes that the thing, your wonderful child or children, can grow and change.

The key is a material change in circumstances of the child or one or both parents. If there has been such a change the court can look at the new circumstances and decide what is best for the child now. If there has not – the suit is one for the same thing that the court already decided and it is barred – res judicata. 

How do you know whether a change in circumstances is material?  Sometimes it is obvious but in close cases you won’t know until the judge decides.

A study at the University of Washington found that divorce filings peaked in March and August.

Trying to explain this phenomenon, Associate Professor Julie Brines said these months follow winter and summer family holidays.  Troubled couples may believe they can fix their relationships with a happy holiday or vacation, but in reality these times can bring even more stress and disappointment to the participants.

Couples with children may want to start a divorce before the new school year starts.

I was listening to the gang at The Kane Show on the radio as I drove to work. They were talking about a Mother-in-Law Prenup. A Mother-in-Law Prenup is an agreement signed before marriage to ensure grandparent visitation rights if one of the spouses dies or divorces.

You could also have a post-nuptial agreement, and it could be a Father-in-Law agreement. Or you could have a Grandparent’s Agreement even if the parents are not married.

While the parties may abide by the agreement, it may be unenforceable if they do not. The courts have the power to decide what visitation is in the best interests of the child. And the US Supreme Court decided in Troxel v. Granville, 530 U.S. 57 (2000), that a parent’s visitation schedule is presumptuously better for the child than a grandparent’s visitation schedule.

The grandparents can overcome the presumption but it’s not easy to do. On the other hand, the parent will have to be prepared to explain why they thought the grandparent visitation schedule was in the child’s best interest when they signed the agreement and why they do not think so now.

The cases where the children refuse to visit a parent are among the most frustrating for parents, divorce lawyers, judges and therapists.

I’ve seen judges order months of reconciliation therapy. I’ve had one judge tell me, “I can’t send a crane to pickup the child and one house and drop them off at the other house.” Another judge said “A 15 year old can go almost anywhere they want on their own. A 15 year old can go to the bus station and buy a ticket.” None of these solutions are usually very satisfying to either parent.

Now one judge in Michigan has come up with a different idea. She is holding the children, ages 9, 10 and 15, in contempt for refusing to have lunch with their father and putting them in a juvenile detention center until they change their mind. The mother’s attorney has filed a writ of habeas corpus to free the children which is scheduled for July 15, 2015.

Read more about this case.

“How much will my custody case cost?” is a question I hear over and over.  I don’t know is the answer.  If things go well, if both parents and attorneys are reasonable, and you are lucky, the cost may be below my initial retainer of $5,000 and you will get a refund. If you get into litigation, your fees could be two or three times that, or even more.  The sky really is the limit.

Witness the Toronto case known as M. and F.  The mother alleged that the father was not entited to overnight visits with their six year old son because he had been violent toward her.  That made him, according to the mother, unsafe to be alone with the child. The mother owns a successful insurance brokerage.  The father is a lawyer.

The trial lasted 34 days. Then the case went to the Ontario Court of Appeal.  In the end, the father won.  The court ordered the mother to pay $540,000 of the father’s legal fees.  The total amount of legal fees spent by the two parents was over two million dollars.