Divorce: Modifying Custody FAQ

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  • Can I terminate my ex-spouse's visitation if he or she doesn't pay child support?

  • At what age can a child decide with which parent to live?

  • Is there a danger in my ex-husband's request to arbitrate a modification of our parenting agreement?

  • Will a court look negatively on my smoking around my child?

  • My ex-wife moved to another state and I think her new husband is an alcoholic, and abusive to her and my kids. How can I change custody?

  • I have custody of my 10-year-old daughter and want to move to another state. Do I have to tell the court or can I just go? If I have to tell the court, what will they do?

  • My ex-husband is gay, has custody of our 10-year-old son and they live together with his "partner." I'm afraid of the effect that this may have on our son. Is there anything I can do?

  • Can I modify our custody arrangement because of my ex-wife's Internet usage?

    Q: Can I terminate my ex-spouse's visitation if he or she doesn't pay child support?

    A: No. Child support and visitation are independent obligations. You can't stop paying support if visitation is denied, and you can't deny visitation for nonpayment of child support. Terminating visitation would be a contempt of court, and could be a criminal act.

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    Q: At what age can a child decide with which parent to live?

    A: When the child isn't a child anymore?

    However, each state has a test for when a child may express a preference to the court. In some states, it's a certain age. In other states, the judge can speak with any child and weigh the child's preference.

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    Q: Is there a danger in my ex-husband's request to arbitrate a modification of our parenting agreement?

    A: If the arbitrator is neutral, your husband shouldn't have any more control over the situation than you have. Arbitration is a legally recognized alternative to litigating a lawsuit through the court system and is frequently used in divorce cases. In arbitration, everyone agrees to present the issues, through their attorneys, before an arbitrator of their choice for an enforceable court order. Both parties must agree on the arbitrator and the arbitrator should be skilled and knowledgeable in all aspects of family law. In some states, however, an agreement to arbitrate a custody or visitation dispute violates public policy and isn't enforceable. In Ohio, for example, the legislature has determined that the use of arbitration in child custody matters would undermine the court's broad discretion in settling on custody solutions that are in the best interest of the involved child.

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    Q: Will a court look negatively on my smoking around my child?

    A: Most courts must look at all factors related to the "best interests of a child" in making a custody decision. At least one court has found a custodial parent's smoking to be a relevant factor in changing custody. In that Georgia case, the child was diagnosed with asthma after the divorce and the mother continued to smoke. The court held that the mother's continued smoking in the child's presence showed inadequate concern for the welfare of the child. This, alone, may not be enough to require a change in custody, but it doesn't help. If your ex has shown an intention to use your smoking against you, stop smoking around the child. Better yet, stop smoking.

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    Q: My ex-wife moved to another state and I think her new husband is an alcoholic, and abusive to her and my kids. How can I change custody?

    A: From the information you've provided, it appears likely that the state in which your children now live with their mother would be the appropriate place to decide any custody issues. But it's possible your state retained continuing jurisdiction over custody matters because it crafted the original order.

    You should speak with a local attorney to see where you must bring this action, and what needs to be shown to change custody.

    If you actually suspect child abuse, you likely should report it to authorities in the area where the children are residing.

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    Q: I have custody of my 10-year-old daughter and want to move to another state. Do I have to tell the court or can I just go? If I have to tell the court, what will they do?

    A: Under some states' laws, when the residential parent and legal custodian of a minor child intends to remove the child from the state, that parent is required to file a notice of intent to relocate with the court. Many parenting plans and divorce decrees have a provision requiring this as well. As with most situations involving parental rights and responsibilities, the court will make a decision based on the "best interests of the child" standard. Unless the father agrees to the move, the court is going to focus on what the move will do to the child.

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    Q: My ex-husband is gay, has custody of our 10-year-old son and they live together with his "partner." I'm afraid of the effect that this may have on our son. Is there anything I can do?

    A: The answer to your question may depend on the effect that your ex-husband's relationship is having on your son. A United States Supreme Court case has held that the law cannot give effect to private biases. Under that case, parental conduct must have a direct, adverse effect on the child. The effect must be proven to be harmful with the focus being put on the present physical and psychological welfare of the child and his or her own developmental potential. Without such evidence, nonmarital sexual conduct cannot warrant a denial of, or change in, custody.

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    Q: Can I modify our custody arrangement because of my ex-wife's Internet usage?

    A: The Internet is finding its way into every aspect of peoples' lives. While the laws relating to the Internet are still evolving, your situation actually centers on the "best interests of the child." Most states base custody decisions at least in part on the "best interests of the child" standard. Therefore, if you can show the court that your ex-wife's use of the Internet is interfering in some way with her ability to be a good parent or is somehow having a negative effect on your children, the court may have a basis to modify the custody arrangement.

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