asfasf
journeyman
Reged: 02/02/08
Posts: 84
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Next Fall my daughter will go to a different school for kindergarten. Is that a material change in circumstances that I can use for modification of custody?
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BeckaLeigh
Carpal \'Tunnel
Reged: 06/08/05
Posts: 6875
Loc: Texas
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No. Once custody has been decided and the other parent is a half-way decent parent, you will have to fight pretty hard to get CP status. I wish you luck in your fight.
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I tried being normal once. Worst five minutes of my life.
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Maury
Carpal \'Tunnel
Reged: 06/02/04
Posts: 8146
Loc: This Asylum --->
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First, most states have a presumption to preserve the original custody determination. As a result, it takes quite a bit to modify custody.
Second, to modify custody, or, to a lesser extent, to modify the parenting schedule, at a minimum you must demonstrate there has been a substantial change in circumstance since the last order and that the change is in the child's best interests.
Your post does not indicate how the change in schools is a substantial change, why it is occurring, how it affects the child or why a change in custody or parenting schedule is in the child's best interest. Certainly, if your child is only in kindergarten and is transitioning from a preschool, there is little to suggest the change is unusual. In other words, without substantially more, there is very little to assess.
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asfasf
journeyman
Reged: 02/02/08
Posts: 84
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The current custody is joint legal and I have every Friday from 6pm - Saturday 6pm, plus Wednesday 6-8pm. The judge made this decision because STBX accused me as a child abuser, based on a few of my daughter's "naked" photos when she was born, plus false accusation.
If I go back to court, can I challenge STBX for more evidence?
Also, on Wednesday evening's visitation my daughter is reluctant to go with me (hint from mom), so I end up staying at her place for two hours.
With the current schedule I don't have opportunity to drop my daughter to school and get involved in her school activities. Next fall when she goes to kindergarten in a different school, she will need more help for homework etc. Can I ask for at least one overnight during the weekday so that I can send her to school, and help her homework etc?
According to my daughter, mom has let her stay with other people more and more. Why can't I spend more time with her?
Or I have little chance for modification? What is considered as substantial change and how long do I need to wait for modification?
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Maury
Carpal \'Tunnel
Reged: 06/02/04
Posts: 8146
Loc: This Asylum --->
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No. The court order that was last entered was based on the evidence presented at that time. You cannot revisit and relitigate that issue or the facts that supported that case. You must have now evidence and new information that have occurred since that last order.
You may certainly seek an expansion of the current schedule, but you must tie your arguments to te applicable legal standard. What has changed since the last order and why is it in the best interests of the child (not just your best interests)?
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Renny
addict
Reged: 09/24/11
Posts: 479
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What makes you think the judge took the molestation accusation into consideration? Does the custody order say anything about it?
At any rate, the change of schools and the fact that the mother is leaving the child ith friends can be parlayed into an argument that one overnight during the week would be in the best interest of the child. But it's the judges decision. I recommend you hire an sttorney for this.
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Debi
Carpal \'Tunnel
Reged: 06/03/05
Posts: 7135
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When was the current custody order issued? I ask because in my state custody can not be revisited before 2 years is up without a major change of circumstances. No, your child starting kindergarten doesn't count.....every child starts school at some point and it's pretty much expected that it will be a change from their current daycare.
If you do not have ROFR then mom doesn't have to ask you to watch the child when she can't be with her. It's up to you and your attorney to have these things addressed in court.
I get that you want to spend more time with your child. Any parent would however looking for ways to change custody is going to get you little except frustrated. Unless she is an unfit mother (by legal definition....not yours) it's not going to happen.
If you want your two hour mid-week parenting time away from mom then plan something fun and when your D wants to stay simply tell her "Oh but we are going XXXX so we can't stay." It doesn't have to be anything expensive. McDonalds playland works well. If she already ate then get her ice cream and sit there playing for 2 hours. If you don't allow it, it can't happen.
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When we were together, you said you'd die for me. Now, I think it's time you kept your promise.
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DedicatedDad
veteran
Reged: 09/05/04
Posts: 1318
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The OP is applying logic to his case....which often doesn't apply. It makes great sense when you have 2 parents that are deeply bonded with their children and want to be with them and be an active parent that they should do just that, but in many states, because the precedent is to have a primary parent that has most of the time, it takes one parent away.
It's very illogical and damaging to many kids, but that's the way it is.
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Renny
addict
Reged: 09/24/11
Posts: 479
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Agree there is an inherent conflict between the presumption that the cc order should not change absent s substantial change in circumstances, which is a high bar, and the intention of the legislatures that to parenting plans should be flexible enough to last through the changes the children will go through. The legislatures envisaged cooperating parents making changes by consent as needed in the best interests of the children. What has happened instead is that parents tend to be territorial, as they were before the new laws cme into effect, and don't want any changes.
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asfasf
journeyman
Reged: 02/02/08
Posts: 84
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The current custody order was issued back in October, in Virginia. I don't know how long it takes before it can be modified.
I went through the court order again and found it might be based on misunderstanding:
When the judge asked me what visitation schedule I wanted, I told him that based on the working schedule of both parents (mom works half time at home, I have a full time 9-6 office job), I'd like to have Wednesday overnight, sending my daughter to school on Thursday morning, and Friday-Saturday overnight.
But in the court order it says, "The plaintiff (father) seeks joint legal custody, Wednesday evening and Friday-Saturday overnight visitation. The mother opposes joint legal custody and unsupervised visitation..."
Did the judge think I was not seeking Wednesday overnight but only two-hour visitation instead? That's what he gave me. If that's a misunderstanding, can I appeal?
Also since I assumed I will automatically get half of the holidays and 3 weeks of summer break etc, I didn't specifically ask for that, and the judge didn't mention that in the order. Can I appeal because of my misunderstanding?
During the court hearing and on the court findings, the judge has expressed his negative feeling on the defendant's attitude, and indicated that her accusation is "not corroborated".
The reason I want more time is I really believe it's to my daughter's interest. According to expert's opinion (from parenting books), the best custody is to have a shared one with each parent having at least one-third of child's time...I know this is won't convince the court..
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