The parties were divorced on March 22, 2010, and agreed to share joint legal and physical custody of their two minor children through a consent judgment of divorce. Then, on May 4, 2010, plaintiff gave physical custody of the children to defendant because he believed that he could not join the military and maintain joint physical custody.
On December 28, 2010, plaintiff filed a motion to both set aside that consent order because he had not actually joined the military and to request sole physical custody of the children. Following mediation, the parties entered into a settlement agreement on October 18, 2011. The agreement provided that the parties would continue to share joint legal custody but that defendant would retain physical custody. The agreement also awarded plaintiff parenting time with the children every other weekend, from Friday to Monday, and every Wednesday.
Plaintiff filed another motion for modification of custody and other relief on February 27, 2015, requesting primary physical custody and asserting that defendant failed to meet the children's medical or hygiene needs, refused to allow him to have the children vaccinated, left the children unattended, refused to allow the children to see a psychologist outside of her Christian counselor, attempted to dissuade the children from discussing their feelings, and failed to ensure completion of the children's homework. The trial court held a hearing on March 11, 2015, and entered an order requiring the parties to follow a pediatrician's recommendations regarding vaccinations and that the children begin to see a counselor. The order also stated that plaintiff could allege a continuing pattern of behavior with regard to defendant in any future custody motions. Finally, on April 15, 2016, plaintiff filed the motion at issue to change custody and parenting time, requesting that the court award joint physical custody with 50-50 parenting time.
The Court must affirm all custody orders unless the trial court's findings of fact were against the great weight of the evidence, the court committed a palpable abuse of discretion, or the court made a clear legal error on a major issue. The moving party must prove, by a preponderance of the evidence, the existence of proper cause or a change of circumstances before the trial court may conduct a hearing to review the custodial best-interest factors.
A movant must prove that, since the entry of the last custody order, the conditions surrounding custody of the children, which have or could have a significant effect on the children's well-being, have materially changed. Further, the evidence must demonstrate something more than the normal life changes (both good and bad) that occur during the life of a child.
In support of his motion for a change of custody, plaintiff introduced a letter written by the children's counselor, which suggested that defendant discouraged the children from discussing their challenges, left the children to fend for themselves while in her care, failed to meet the children's hygiene needs, and failed to ensure that the children completed homework assignments.
In response, defendant, both directly and through counsel, contended that the children showered at her house and that the children were doing fine in school. Further, when questioned by the trial court, plaintiff admitted that the children were doing well in school.
Following hearings, the trial court entered an order determining that plaintiff had failed to meet the threshold necessary for entitlement to a hearing regarding modification of custody or parenting time. As discussed above, most of plaintiff's allegations were disputed by defendant, and plaintiff presented limited substantive evidence. Many of the allegations amounted to normal life changes insufficient to warrant a change in custody. Hygiene issues and homework struggles are common for many children the same ages.
If you are going through a divorce or are separating from the mother or father of your children, it is important to protect your custodial rights. If the divorce or separation process does not turn out like you thought it would, you may not have the custody, visitation or child support you deserve. Seek the advice and guidance of an experienced family law and divorce attorney who will be by your side every step of the way.