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Divorce: Modifying Custody FAQ |
Q: At what age can a child decide with which parent to live?
Each state has a test for when a child may express a custody 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.
Q: Can I modify our custody arrangement because of my ex-wife's internet usage?
- A: 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 internet use interferes 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.
Q: Can I terminate my ex-spouse's visitation if he or she doesn't pay child support?
No. Child support and visitation are separate issues. You can't stop paying support if visitation is denied, and you can't deny visitation for nonpayment of child support.
It's a good idea to talk to your lawyer when child support and visitation problems arise. Even if there's a problem, it's the duty of both parents to follow the court's order. The proper way to make a change is to go back to court and ask for modifications.
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 a custodial parent plans to move, he or she must file a proper notice with the court. Many parenting plans and divorce decrees also provide for this situation. As with most situations involving parental rights and responsibilities, the court will make a decision based on the "best interests of the child" standard, and focuses on the impact of the move on the child.
Q: Is there a danger in my ex-husband's request to arbitrate a modification of our parenting agreement?
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. 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.
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.
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?
It's best to seek help from your attorney to change custody. When a move is involved after a divorce or determination of custody, you need to figure out which court has jurisdiction or authority over your case. Your lawyer can determine the correct court, whether it's the original court or a court in the state where your children now reside.
When child abuse is actually suspected, turn to child welfare authorities in your children's new location for help.
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. Court decisions exist in which smoking was a factor in deciding custody. This, alone, may not be enough to require a change in custody, but it doesn't help. Talk to your lawyer about whether or not smoking could impact custody in your case. At the least, parents can avoid smoking around children if quitting smoking isn't an option.
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