asfasf
journeyman
Reged: 02/02/08
Posts: 84
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My 5-year-old daughter told me when she visited me that last Friday mom was busy so she sent a friend to pick up my daughter from school. That friend didn't have a car seat in her car. I can't imagine how she managed to take my daughter home, probably put her on the backseat under safety belt.
I don't know whether this is enough to bring mom back to court for a modification of custody / visitation? We just had a contested custody case that gave me joint legal custody and weekend visitation.
Thanks in advance.
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DedicatedDad
veteran
Reged: 09/05/04
Posts: 1318
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If you can find about 100 similar things to establish a pattern, then yes. One time? Not a chance.
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Maury
Carpal \'Tunnel
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Posts: 8146
Loc: This Asylum --->
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No, It would not be sufficient to modify custody. At best you would acquire an admonition of the court indicating that each parent must transport the child in a vehicle with a properly licensed driver and proper child restraints.
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BeckaLeigh
Carpal \'Tunnel
Reged: 06/08/05
Posts: 6875
Loc: Texas
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You are grasping at straws. This will have no weight in court, most likely. Not enough to modify custody, for sure.
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I tried being normal once. Worst five minutes of my life.
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asfasf
journeyman
Reged: 02/02/08
Posts: 84
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Even though it's illegal to drive a child without car seat?
Thanks.
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Debi
Carpal \'Tunnel
Reged: 06/03/05
Posts: 7135
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Since it was the child who told you and it's unlikely any family court is going to have a 5yo testify against their parent on something like this (especially as it's a one time thing) it is hearsay.
Also the mother could say she didn't know the person didn't have a car seat or that the person told her they did and has spoken to them about it OR she could say it was an emergency situation. No judge is going to reverse custody over this as a one time thing. You'd have to prove that it's happening over and over.
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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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Maury
Carpal \'Tunnel
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"You'd have to prove that it's happening over and over."
Even then, it is not probable without more.
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Debi
Carpal \'Tunnel
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Posts: 7135
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True. I guess I should have added "at the very least".
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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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Debi
Carpal \'Tunnel
Reged: 06/03/05
Posts: 7135
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On another note you could ask for a right of first refusal. Meaning if mom can't pick her up she has to call you to get her before anyone else. Of course since you were JUST in court and didn't ask for it I'm not sure how likely you'd be to get it now.
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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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BeckaLeigh
Carpal \'Tunnel
Reged: 06/08/05
Posts: 6875
Loc: Texas
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Yes, even though it is illegal not to use a car seat. The longer you go thru this, the more you will see that the same rules don't seem to apply across the board, even though they should.
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I tried being normal once. Worst five minutes of my life.
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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
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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
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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
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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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Renny
addict
Reged: 09/24/11
Posts: 479
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Virginia Code § 20-108 requires the party petitioning the court for modification of a custody order to prove that (1) there has been a material change of circumstances since the entry of the last order, and (2) it is in the best interest of the children to modify custody.
The change of circumstances may be either positive or negative. A positive change could be a parent's remarriage or getting a new job with either a higher salary or more flexible work schedule. A negative change could be a child developing behavioral problems, one parent struggling with substance addiction, or a criminal conviction of a parent.
The change of circumstances must take place after the entry of the last order in your case-- it cannot be based on testimony or evidence that pre-dates the entry of the last order.
As our prior blog posting, Denial of Visitation and Modification of Visitation Orders In Virginia explained in more detail, a parent's denial of court-ordered visitation may also be a material change of circumstances allowing for a modification of custody.
In evaluating the material change of circumstances required for custody modification, the Judge will make a factual determination based upon the specific facts of your case. If the Court determines that there has been a material change of circumstance, the Judge will then examine the best interests of the children by examining the ten factors codified in Virginia Code § 20-124.3. These are the same factors that were considered at the initial custody hearing, and include the age of the children; the health, needs, and relationship that each child has with each of their parents; and for any child of sufficient age, the child's preference as to custody./quote from a va blog.
It appears there is no two year waiting period for modification in va.
What the order says is what governs. "misunderstandings" in the sense that the judge didn't grant you what you asked for or wht you assumed are generally not grounds for modification. If you have a transcript of the hearing and you can show a clear mistake, then you could ask for a correction. Here it seems the order and it's findings are pretty clear.
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asfasf
journeyman
Reged: 02/02/08
Posts: 84
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During last weekend's visit my daughter told me that she missed the Friday evening party she used to go with her mom before the court-ordered visitation. I said I can take her by myself but she prefers to go with her mom as before.
Is it a good idea if I propose to EX for a modification and if she agrees, do we need to get court approval before switching to the new schedule to avoid any trouble in the future? How complicated is the court procedure?
Thanks!
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