Modification of Custody

[JDM]

I live in Indiana, have a boy 14 and a girl 11. They both want to live with me and have since our divorce 5 years ago. Three years ago I requested a modification of custody. We had a two day hearing which ended up being a waste of time and money, as the judge determined that I didn't prove substantial change of circumstances. The kids were and are very disappointed. Now I have filed for custody of my son, by his strong request. Since he is 14 some people tell me that all but guarantees the judge will grant the request. Is this true? I am getting ready to pay about $2000 in retainers and mediator fees, and I'm sure that figure will double before this is over. I cannot afford to lose this, for my son's emotional welbeing and the fact it will be most all of my money. How much does "more consideration to the childs wishes at age 14" mean?

 

[dorenephilpot]

The statute in Indiana that actually addresses that issue states:

"31-17-2-8 Custody order.

Sec. 8. The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following:

...
(3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age."

As you can see, it's not an absolute, but the child's wishes do carry weight.

As much as you want custody and as much as the child does, too, I'd say it's worthwhile to fight.

Best of luck to you. Let me know if you have further questions.

 

[JDM]

Appeal?

I know that my ex and her attorney will do everything possible to make it apear that I have tried to influence the kids as to with whom they would rather live. I understand that is the most common argument in cases like this. And she is already making those acusationsdirectly to me. Ironically taking the kids on vacation and buying birthday presents can be perverted into bribery in court. If we lose this case, in your oppinion, what is it like going through the appeals process? How long does it take? Do you know how the Indiana appelet court has viewed these cases?

 

[dorenephilpot]

The time has passed in which you can do an appeal for the old decision. Besides, it's easier to win at the trial level, with a motion to modify.

Yes, it would be expensive to appeal a new decision and you almost never win an appeal.

In fact, if you lost after a second attempt, I would advise you to save your time and money and wait for a substantial change in circumstances before trying again.

 

[JDM]

Change

Thank you for your advice. Unfortunately I know two men who with their sons went through similar ordeals. Unfortunately the court seemed in both cases to wait until these boys were so discontent they went to live with their fathers directly from juvenile court, one for drug posession and the other for stealing a motorcycle. Why does the "change of circumstances" have to be catastrophic? This is what I hope to avoid. I really do not believe my son would ever be in either situation, but One of those boys was my first cousin, and my daughter told me my son shoved his mom recently, and I would never have believed that either.

Ironically, my ex and I have been getting along very well. This is the only "real" problem we have. And in this she is intransigent.

 

[dorenephilpot]

Fairly frequently, when a son reaches his teen years and lives w/his mother, they war and the father ends up w/custody, by agreement. The son wants to leave the mother's home, and the mother is glad to be rid of him. She still loves him but finds him to be unmanageable and it becomes the only solution in her mind.

Sometimes these things take care of themselves like that, but you end up w/a teen with an attitude problem (of course, they're all like that, some just worse than others).