Can I Modify Child Custody, If My Ex-Spouse Has Primary Physical Custody Of Our Children?
Today’s question comes to us from Alberto. He is asking a question about modifying his child custody where his wife has primary physical custody of their children.
Alberto had a divorce about five years ago and his wife was granted primary physical custody of their two children based on their agreement. The agreement was that the wife would be primarily responsible to take care of the children during the school week and Alberto would then take the children sometimes at night, after school, and primarily on the weekends.
Now Alberto is stating that the wife is withholding the children, not enforcing schoolwork, oftentimes, missing school and he wants to modify this custody agreement to give him primary custody of the children so that he feels he can do a better job in taking care of them.
What I explained to Alberto is that once a party has primary physical custody given by the court, it is a very, very big hurdle to jump through to change that primary custody to joint or to give the other spouse the primary custody.
There are two hurdles that must be overcome to modify custody when one party has primary physical custody.
- The first thing is you must prove to the court that there has been a substantial change in circumstance that affects the welfare of the child. For example, in this situation, Alberto can say, there’s a change in circumstance as my children were good students, and suddenly, because mom has not been very responsible with their schooling, they are failing, they have failing grades. This is detrimental to my children.
- The second prong that you must meet to modify it is you have to have the child’s best interest at heart. Okay, does this affect the child in a positive way? Is this in the best interest of the child? In this simple scenario, it appears that it would be, right? The children are failing grades, the mom is not being a responsible parent when it comes to their schooling and the children are failing. So yes, this is in the children’s best interest, in the welfare of their children, and for the children to be with a parent who makes certain that their educational needs are being met.
I hope this answers this question. If you want to discuss this further, please go to vegasdivorcemeeting.com. I’ll be more than happy to discuss this with you further.
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