Tag Archives: custody modification

Changing Custody vs. Visitation

Modification is the process that is used to change a Court Order.  I previously discussed how NOT to modify your papers here.

Here are the basics for the right way to modify the Court Order.  Child Custody, Visitation and Child Support are always modifiable. However, each has a separate standard.  Each require that you prove something different.

I.  Child Custody is the most difficult to modify. The non-custodial parent, must demonstrate 1) a material change in circumstances,  2) adverse to the child, 3) in the home of the custodial parent.  In English, dad has to show that there has been a big change, harmful to the child and it was mom’s fault.  It does not matter how much better dad is doing.  It does not matter that he has a new job, making good money, and has remarried Mary Poppins.  The Standard concerns what is going on in mom’s house.

A material change could be bad grades, serious behavior problems, serious problems with mom or serious problem with mom’s new beau. Now, once you show the bad change, harmful to the child, and it’s mom’s fault, dad wins, right? No. That provides the Court the authority to go back through the Albright factors for the Court to determine which parent is in the best interest of the child.

II.   Visitation has a lower standard to modify.  In order to modify visitation all one needs to do is demonstrate that the current schedule is not working.  This can be shown by showing that a party moved over several hours away making every other weekend unworkable or by showing that due to the child’s schedule, or a parent’s work schedule the visitation plan is not working.  This one is easier to pursue, but the outcome is not always predictable, so have a plan for what schedule will work if you are seeking to change it because of distance or a work schedule issue.

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Matthew Thompson is a Mississippi Child Custody Attorney and reminds you to follow your papers.

Follow the blog: BowTieLawyer Visit the websiteThompson Law Firm You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms

Jr. is 12+, he picks where he lives, right?… Child Preferences and the Law

If I had a nickel for every time a parent has said,

“Well, Jr. is (insert age) so I reckon he picks where he lives, right?”…

I’d have a wheel barrow full of nickels.

It’s true that a child may express a custodial preference if they are 12 years old or older, however that preference alone will not carry the custody issue.  It is but one factor that the Court must consider when performing an Albright Analysis.  Albright is the case that lists the factors the judge must consider when determining custody.

Said another way a 12-year-old does not get to pick and that be the end of the story.  There are a myriad of cases where a child has stated a preference for one parent and the Court determined that the best interests of the child favored the other parent.  One famous case involved a 14-year-old that wanted to live with Dad.  Dad purchased him a 4-wheeler, let him have a TV in his bedroom and kept his  “Adult” magazines around, easily accessible.  Mom, on the other hand, made him eat his vegetables, do his homework, no TV in his room and forbade inappropriate materials.  If you’re a 14-year-old male teen, who would you pick?  The Court determined, after a factual analysis, that mom was better suited for the teen, despite his stated preference.  This case was upheld by the appellate court as well.

So, a child 12 or older can state a preference, but it may not carry the day.  The better course would be for mom and dad to resolve the custody visitation issues and prevent the child from being in that position.  However, that advice is easy to say and very difficult to follow in certain circumstances.

Matthew Thompson is a Child Custody Attorney in Mississippi.  While child preferences in a custody case matter, that alone will not support an initial custody decision, nor is the sole basis for a modification.  

Follow the blog: BowTieLawyer Visit the websiteThompson Law Firm  You may also contact Matthew with your family law case, question or concern at (601) 850-8000 or Matthew@bowtielawyer.ms