If a couple has joint custody and one parent decides they want to take the other to court for full - what exactly does that parent have to prove as a substantial enough reason for the courts to order the change?
Is it up to the person being brought to court to prove they still deserve to have rights with their child - or is it up to the person bringing the other parent to court why it is needed?
I guess I should clerify - in USA.
What are the 2 sides called? Plantif & Defendant? or does that not apply for custody cases?
Again, from an Australian perspective, what is "joint custody"?
Another term that needs to be used is "residence". So shared custody means that both parents have access, they could live with the mother most of the time, and the father some of the time, which is to do with residence. Or they might never live with the father, but he still has joint custody, but not the residence. He might still have access though, in the form of visitation.
Full or sole custody could mean that the other parent who has no custody has no contact at all.
It's going vary country to country, even state to state within country. If you can find out what the specific terms related to your case it will make it a lot easier if you're representing yourself or even if you have a lawyer, because you'll both be on the same page.
"Joint" custody is a shared 50/50 of all legal & physical matters & time having to do with the children.
"Full Physical" means 1 parent has the children the majority of the time & the other parent has visitation.
"Full Legal" means 1 parent has all legal rights to the child & the other parent is not cleared for things such as medical & school records, tax excemptions & so forth, without the written concent of the first parent.
A person can prove s/he deserves the kids (and far more than the other person does), but judges don't necessarily take that into consideration. I can tell you that, based on my own custody case.
This is a question only an attorney in your state, with knowledge of the individual situation, could really answer.
Based on my own experience, others' experience I've heard of, research, etc.:
Something people have to be careful of (although a whole lot of things don't apply to both spouses for one reason or another, as far as I can see) is not to appear to be "trying to infringe on the rights of the other parent". Maybe it depends on the judge or the state, but I was told that was a big way to lose custody. (Then again, someone grossly infringed on my rights, and it didn't matter - so one problem in is inconsistency in the courts. Another is rigid adherence to policies/laws regardless of what's best for the child.
There are two kinds of custody - physical (who the kids live with) and "overall" (whether or not one parent or both is involved in decision making).
You probably also know that a separate issue might be visitation. A complaint for modification of just visitation could be filed; and that wouldn't necessarily change custody.
Agencies like DDS/CPS won't get involved with "lifestyle issues" (so a lot of rotten treatment of the kids can go on under the category of "lifestyle", as long as it isn't abusive; but then even if someone is abusive it makes a difference whether he intends for the results that an abusive person is aiming for; or whether he's just a jerk when it comes to parent (and he doesn't mean to be abusive).
If someone is accused of something there has to be sufficient evidence against him, and even if there is, it can get into "gray areas" as mentioned above. The physical safety of the children matters more than the emotional/mental wellbeing (which, apparently, doesn't matter very much in a lot of courts). (Based on what I've seen and heard about.)
Basically, it seems to me there's a really good chance it will all turn out to be a giant crap shoot. Judges do whatever they do (whether they know what they're doing or not). The laws kind of have a standard way things are handled, and it takes a whole big deal to get things handled differently A parent can think s'he has a whole good set of evidence/information/proof, etc. to give to a lawyer; and then the lawyer will disregard it all and do the "standard" thing (the way it's always done, and without regard for the wellbeing of the children).
I, personally, more than proved both - I was ignored anyway. I'm not the only one, by any means. The courts (at least where I live) don't care about the psychological and/or emotional wellbeing of the children. They just don't. Plain and simple. All the proof and reason and documentation and whatever else in there is to submit to the court don't matter.
The judge (retired judge Ginsburg, Massachusetts) in my case has been on tv and in the law publications, among other things. I actually read in a law publication his remarks about how he thinks the "courts have to take back control..." (in custody cases). What does that tell any citizen in a custody battle? He also said he thinks custody should be resolved in no longer than six months because he doesn't think the parents should be going and to court and expecting judges to stay involved and act as "parents". (I para-phrased.) So, this guy had his mind made up about going back and changing things.
I think all anyone can do is contact an attorney, go for whatever she thinks she can go for (changes-wise) and see what happens. She should be prepared for the possibility she'll get nowhere, or even somehow find herself being "penalized" by appearing to be trying to infringe on the other person's parental rights. I don't think a person can sit in her living room, guess about what she should be doing or how she may be able to win - any of that. There's guessing ahead of time (unless an attorney thinks s/he has reason to think s/he can win for the client, in which case, maybe it could be encouraging).
As for being resolved in 6 months - apparently that's not a top priority where we're from. This thing has been going on for a year!
Mom decided she wanted to have full legal and physical custody of the kids, so she filed with the court, served dad with papers - bringing the kids in the middle of it to do so -
She lied to the courts, lied to the evaluator... Got a "temp" custody change where she took dad's 50/50 rights down to 3 weekends a month...
Final trial is at the end of this Sept.
(I'm on dad's side in this case)
Dad is fighting to keep 50/50 custody. He has a detailed calendar mapped out to show how it is possible to keep this shared time.
Mom said it would be "detrimental" for the kids to move from where they were, pressed for a speedy trial - didn't get the speedy trial - the truth came out that SHE was moving, then pushed for a "slow down" so that she could have time to find a lawyer (9 months into it)...
She is manipulative & deciptful. She does not have the children's best interest in mind - she has only her own.
So is she going to win just because she's mom?
Is she going to win because she's a very convincing liar & manipulator?
Or does dad have a shot here?
He's trying to keep the order the same with slight modifications on the shared time such as "instead of thursday to thursday" lets divide it up this way insead.
Mom is trying to have his time greatly reduced & to alter the agreement all together.
Any thoughts on what else dad can do to prepare?
Any other tid bits that could possibly help?
And I just need to add here, because I've asked questions similar to this and gotten mistaken for BEING the child in question - I am NOT the child in question.
Also, the more cash, the better an attorney, the more guarantee of everything, in my case anyways. Cash even talks in chambers but lisa was on a much better explanation and form of support, no doubt. Good Luck!
In the USA the plaintiff is the person "initiating" the court "thing", but if the divorce/custody case began with one person being called "the defendant" that person may remain "the defendant" throughout.
I don't know how I went from "plaintiff" to "defendant" when I tried to get a divorce; but I did. Everything I started was "undone" when my husband's lawyers went for the "nuts-or-sluts" defense, got me "accused" of being "nuts", and created enough of a a need for "further investigation" (through lies and manipulation) that the judge went with the "default" parent (who at least hadn't been "accused" of being nuts).
Based on what I've seen/heard about; I still say nobody can guess who may or may not win - really. There is no way on Earth I ever would have guessed that getting a good, solid, mother's kids away from her is essentially as easy as 1 (lie), 2 (accuse based on lies), and 3) raise at least enough question to make someone like a judge want "more investigation" (which will be based on information provided to people who believed lies in the first place, or at were responsible for them).
So, really - there's no point in trying to guess. Judges and courts do things that are really bizarre.
Unfortunately it does all come down to the specific judge...I can say that here a person certainly DOESN'T win just because they're mom. In fact, here it doesn't seem to matter if there's a clear-cut case that shows one parent will be much more beneficial to the child than another, it comes down to the judge...and when fathers here fight for their rights, judges generally come down on their side because there is statistically less chance of a non-custodial mother leaving their children's lives completely than a non-custodial father doing the same.
Sadly, Lisa is right that it doesn't always take proof...if the judge wants to listen to opinion, s/he will. In my case they also went for the "nuts and sluts" defense...and their entire case was built around mental health care I received when I was 14, and the fact that my then boyfriend (now husband) was 49 -- considerably older than me, yes, but the extent of that part of their defense consisted of repeating his age about five times with absolutely nothing else to go with it. My ex went in with his girlfriend who was very pregnant with a child conceived very shortly after I left, and had moved in two weeks after I left, and they were trying to accuse ME of being unfaithful in the marriage even though the significant other they were attacking never even came into physical contact with me until six months into the case...he lived thousands of miles away before then. The really sad part is, they won...and they're now all four living in a decrepit 480sq.ft. 1-bedroom house...the same house I didn't fight for my share of, because I was afraid my share would be half of a deficiency judgment if anyone saw the condition that place was in, and that it apparently only mattered that I'd lived there, not that I'd been concerned enough about it to try to get my son out.
That said...your SO's lawyer is probably the most equipped to give you the answer about what you need for the judge you'll be going in front of. If there's already a date set, you should know which judge that is, and every lawyer gets very well-acquainted with the judges (and other lawyers)in their area very quickly. I believe as far as the law itself goes, all he has to prove is that the current arrangement is working well for the kids, can continue to work well, and that less time is uncalled-for and could potentially be detrimental to the kids. However, just bear in mind that it's rarely just about what the law says...any court can be a tricky thing, but my own experience has been that family court can be far trickier than anything else.
I asked his lawyer what kind of judge we had. He said she is new to the county, so he hasn't had a chance to work with her yet - and she isn't actually a "judge" she is a "referee" - not sure what that means, but whatever - she still gets to decide what happens.
..and, when someone clears up either the nuts or sluts accusations; all it takes is to get a court order that stops the other person from being able to earn the living he could otherwise earn. Lawyers know how to work all this stuff in favor of their own client. Money talks in more ways than one.
There's no guessing. There's no being able to trust that what's right will be done, that who lies will be ignored, that anything will be fair, or anyone is really going to give a rat's bottom of the what's best for the children.
Just remember that "custody" and "visitation" are two entirely different things, at least in my state. It is quite possible for a mother, let's say, to have full custody of a child and still split visitation 50/50 with the father. Custody is more about who has the legal capacity to make decisions for the child, etc.
For example, I was awarded full custody of my 3 kids (my ex couldn't wait to sign them away unfortunately, so no battle on my end), but my ex was still awarded visitation rights.
Yeah, here there's a difference between "legal custody" and "physical custody"....legal custody means the ability to sign for medical care, get school records, get vaccinations, etc. while physical custody is who the kids are actually living with. Unless a danger to the children can be proven without a doubt, the non-custodial parent still retains visitation rights. I know both parents are free to work out any kind of visitation they want if they're willing to work together on it, but in my state if they don't it goes to a default every other weekend, every other major holiday and 4-6 weeks during the summer for the non-custodial parent. In Mom Kat's case, though, since the agreement has already been 50/50, hopefully they'll look at that and see that there's no reason to go to less time.
Well this entire thing blows chunks. I suspected that judges (or referees) don't really give a rats butt - it's just another case on their doc. list to get done and over with.
which is really sad.
I was hoping that he might have a fighting chance since he's trying to keep the original order.
I was hoping that she would have to prove a darn good reason to change it & she's told a few lies that we can call her on.
Hopefully once the referee hears the truth - or more accurately-the answers to the questions his lawyer asks pertaining to the paperwork she filed - the referee will see that she is a liar & rule to keep the custody joint rather than award her with what she's asking for.
In "our" favor (at least a little) - mom & her husband have already done things in the previous visits in front of the judge that have bothered the judge. The husband was even asked to leave the courtroom for being disrespectful. Maybe the referee will keep those impressions in her mind while making her decission.
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