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  1. #1
    Join Date
    Jan 2008
    Posts
    4

    Default Proving A Substantial And Material Change

    Hi everyone.

    I have joint legal custody currently of a minor 5 yr old child, but am not the primary conservator that has the right to determine primary physical residence, thus I am the parent with visitation. I believe it is now in my child's best interest to live primarily with me now, but before I pursue a custody modification- I need to know truly what is a substantial, material change in circumstances? Since the original decree (in which I voluntarily agreed that my ex should be primary) many things have changed. Formerly, I clearly had inferior means of providing for my child- I knew that me being the primary was not what was in my child's best interest so voluntarily allowed my ex to be the primary. In the meantime I achieved the education in healthcare I needed to make a life for me and my child, have remarried to a wonderfully supportive man, had another child, have a house, and sincerely believe that my household will provide a better quality of life and more stability.

    Because of my ex's job he will be forced to move every few years although he was not prohibited from moving in the decree. Also, my child has been diagnosed with ADHD and the ex has made no attempts to make changes to the child's living environment or even comply with the medication prescribed for the ADHD- no follow through. While living in my ex's household, my child was at one time subjected to regularly staying overnight at a member of the opposite sex's house (how in any way whatsoever is this positive) and living in a dirty, disorganized house. My ex has made no effort to involve our child in any extracurricular activities or anything outside of going to daycare and coming home watching television until bedtime.

    I have tried everything to improve my status in life since the divorce for the sake of my child. My child has no social supports (no family members) in the vicinity of where he lives currently. My household would provide him with additional caregivers, religious upbringing, enrollment in the same school system continuously,extracurricular activities, proper counseling for the ADHD, and advantages over the ex's household to provide my child with all the opportunities possible to thrive. My mother-in- law is even a guidance counselor to augment my mental health degree- I would think these facts would be very positive in a child with documented behavioral issues.

    I just need to know if pursuing a change in the child's primary physical residence has a chance of working in this case. What hard and fast evidence can I really show, to prove that my household will be an improvement in his living conditions? The only positive in my ex's favor is the status quo-of having been the one to provide care with the child having his needs met. Most reasonable people could see that my household's living environment would be ideal to allow the child to have all of life's advantages and reach his mental and emotional potential in a stable, continuous environment. Does anyone have any advice on how to prove a material and substantial change in circumstances would indeed improve my child's quality of life and be in his best interests? For example, affidavit from churchmembers, family members, and friends, research on the school child would attend, meeting with mental health providers in this area that would treat the ADHD? I felt like I had nothing to offer my child except lots of love at the time of the original decree and now I have created an ideal environment. Any ideas or any input as to the wisdom of my pursuing this custody modification? Do I even have the makings of a case that has a good chance? I have no idea if the court would consider all of these factors as substantial-any ideas??? Thanks in advance for any input that you may have. The state is Texas of the original decree, but have no idea where he will be moving to very soon.

  2. #2

    Default Re: Any Chance That This Can Be Proven As Substantial/Material Change

    I think that you have just made a good case. What does your ex say? If he decides to fight it you could have a long and expensive road ahead of you. If any of you still live in Texas then that court has jurisdiction.

    Initially you might be better off if he will voluntarily allow the child to move in with you and stay out of the courts.

  3. #3
    Join Date
    Jan 2008
    Posts
    4

    Default Re: Any Chance That This Can Be Proven As Substantial/Material Change

    Thanks for the reply, but the ex has already said if I pursue primary he has already that he will become the worst enemy I have ever had in life and I will be starting WWIII (a mature solution I do not think will be possible- he does not look at it from the child's best interest point of view- he looks at it like I am taking the child away and it would be unfair after he has invested this time as the primary). He will most definitely fight it- any change would definitely be made through the courts, so that is why I was asking the questions about my chances to anyone that has any knowledge on the matter. Thanks again!

  4. #4
    Join Date
    Jan 2008
    Posts
    20

    Default Re: Any Chance That This Can Be Proven As Substantial/Material Change

    I honestly think your facts make a poor case for substantial change in circumstances, but I don't know anything about TX specifically... It seems to be a very high burden in MI, which is what I'm familiar with. The reason I say this is b/c some of the things you mention, like not administering the ADHD medication, not being involved in extracurriculars, etc, are all things in which you also have control over as the joint legal guardian. That gives you the right to direct the education, medical, general upbringing of the child. However, if you and the primary don't live near each other, these things would be harder to control without primary custody, and your case may be stronger. Additionally, if you can't get him to agree to let you enroll your son in activities, your case may be stronger.

    If/when your ex does move or knows he will be moving, I think that would be the best time to argue substantial change in circumstances. You want to argue the instability for the child with the constant moving, and reinforce the idea of stability the child would have in your home. I think the best strategy to winning a custody battle is not to attack the other party. Keep your focus on the child's best interests, which is where it appears to be now. The father will have a harder time winning if he's just name calling and attempting to point out your flaws (unless your flaws include things like drug use... My impression is that isn't a concern though...) I would also definitely point out that the child was having sleepovers in a woman's house. Moral fitness is generally a factor considered by the courts, with the catch that anything immoral is mostly irrelevant unless performed in front of the child. If the father is taking his son when he spends the night with his lady friend, the actions are arguably occurring in front of the child.

    If nothing else, I think your facts could lead to an increased amount of parenting time, again depending on how close you and the primary live to each other.

    I wish you and your child the best of luck.

  5. #5

    Default Re: Any Chance That This Can Be Proven As Substantial/Material Change

    Only a family law attorney that knows the judge can tell you what he is likely to do.

  6. #6
    Join Date
    Oct 2007
    Posts
    4

    Default Re: Any Chance That This Can Be Proven As Substantial/Material Change

    I agree with lawstudent8. If you live close enough- why not go for "shared parenting" ie 50/50? At that time you modify the plan to include no overnights of the opposite sex while child is present- many judges have no problem with that.
    Now you have a taste of what the majority of Fathers go thru.
    It needs to be a battle for 50/50 rather than who WINS custody.
    TNDAD

  7. #7
    Join Date
    Jan 2008
    Posts
    4

    Default Re: Any Chance That This Can Be Proven As Substantial/Material Change

    I never implied about who "wins" custody at all, but due to geographical distance it would be impossible for our child to live equal amounts of time, 50/50, in each household as you wisely suggested. In our case, it will always be necessary for one parent to determine the primary physical residence. I appreciate your comments.

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