What are my ex-wife's chances for successfully winning a child custody modification?
She filed a modification of custody because my daughter has been late to school several times this year while in my care and I have a new child on the way with my pregnant wife.
Does the fact that my child was late for school a few times and that I have another baby on the way with my new wife qualify as big enough reasons to change our custody arrangement?
I am unable to give you legal advice on divorce. I can give general divorce help for men, though, my knowledge is based on Georgia child custody laws where I am licensed to practice.
Based upon the information provided, it does not appear that your ex-wife will be granted a custody modification. It is always within the judge's authority to determine custody of a minor child, and the judge shall determine what type of child custody and visitation arrangement is in the child’s best interest.
Statutory factors in my state that the judge may take into account when making a custody determination in include:
A. The love, affection, bonding, and emotional ties existing between each parent and the child;
B. The love, affection, bonding, and emotional ties existing between the child and his or her siblings, half siblings, and stepsiblings and the residence of such other children;
C. The capacity and disposition of each parent to give the child love, affection, and guidance and to continue the education and rearing of the child;
D. Each parent's knowledge and familiarity of the child and the child's needs;
E. The capacity and disposition of each parent to provide the child with food, clothing, medical care, day-to-day needs, and other necessary basic care, with consideration made for the potential payment of child support by the other parent;
F. The home environment of each parent considering the promotion of nurturance and safety of the child rather than superficial or material factors;
G. The importance of continuity in the child's life and the length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;
H. The stability of the family unit of each of the parents and the presence or absence of each parent's support systems within the community to benefit the child;
I. The mental and physical health of each parent;
J. Each parent's involvement, or lack thereof, in the child's educational, social, and extracurricular activities;
K. Each parent's employment schedule and the related flexibility or limitations, if any, of a parent to care for the child;
L. The home, school, and community record and history of the child, as well as any health or educational special needs of the child;
M. Each parent's past performance and relative abilities for future performance of parenting responsibilities;
N. The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent, consistent with the best interest of the child;
O. Any recommendation by a court appointed custody evaluator or guardian ad litem;
P. Any evidence of family violence or sexual, mental, or physical child abuse or criminal history of either parent; and
Q. Any evidence of substance abuse by either parent.
It is important to note, however, that a parent who "wins" on more factors is not necessarily entitled to custody. For example, a parent’s role as primary caretaker is often the determining factor. A primary caretaker, however, can lose custody to a parent with better parenting skills and a more stable home environment.
Further, the grounds upon which your ex-spouse filed her modification do not meet the criteria for loss of custody.
Read Cordell & Cordell'sReasons For Modifications
Where I practice, the following is the criteria the court must use regarding loss of custody:
"if a child is found under circumstances of destitution and suffering, abandonment, or exposure or if the child has been begging or if it is found that the child is being reared under immoral, obscene, or indecent influences which are likely to degrade his moral character and devote him to a vicious life and it appears to the appropriate court by competent evidence, including such examination of the child as may be practicable, that by reason of the neglect, habitual drunkenness, lewd or other vicious habits, or other behavior of the parents or guardians of the child, it is necessary for the welfare of the child to protect the child from such conditions, the court may order that the parents or guardians be deprived of custody of the child and that appropriate measures as provided by law be taken for the welfare of the child."
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult with a mens divorce lawyer in your jurisdiction.