Child Custody

questions & answers

Question: i am going thru a divorce and received an amendment to the divorce. he is trying to get full physical and legal custody of my kids. can he do that?

Answer:

Issues regarding a change in cutody as well as determination of custody, can be found in our Child Custody Article. Here are some questions from the article that might be helpful to you:

What is the procedure for getting a custody order?
The court may grant a custody order only in certain kinds of cases. Most often, custody is determined when the parents are seeking a legal separation or divorce, or when parents are asking the court to change a custody decision that was made in an earlier separation or divorce case. Custody also may be ordered when one parent starts a court case to decide paternity (or maternity) of a child. When a parent starts a court case for legal separation or divorce and the parents cannot agree about child custody, custody automatically becomes an issue for the court to decide. These court decisions are made in temporary orders hearings and in final trial if the parties are unable to reach agreement. After a decree of legal separation or divorce has been granted, the court still has authority to change (modify) an earlier custody order.

How can a court’s custody order be changed? Either parent may request in writing that the court modify a custody order. To change an existing order it must be shown that the best interests of the child are served. The request is filed with the Clerk of the Superior Court and a fee for filing is charged; however, there are limitations on requesting a modification. For example, a request may not be filed for one year from the date of the earlier order, unless there are special circumstances seriously endangering the child's physical, mental, emotional or moral health. If a form of joint custody has been ordered, a modification may be requested at any time if there is evidence that domestic violence, spousal abuse or child abuse has occurred since the date the last order was granted. In a joint custody situation, a parent must wait six months before seeking a modification if the reason for the request is that one parent has failed to obey the court's custody order.

How does the court make its decision about custody? If there is a dispute about custody, the court sometimes refers the parents to internal court mediation services. This process gives the parents an opportunity to reach an agreement regarding custody and related issues; however, if the parents are unable to agree on custody, the court will decide for them. Sometimes the court seeks professional advice from outside experts who evaluate the family situation or offer an opinion about custody. In some situations, the court also may order an investigation by a social service or other agency. In every case, the court must decide custody based on a determination of the best interests of the child.