As advocates who have handled hundreds of different physical custody modification cases, Ciyou & Dixon, P.C. advocates find all fall into two (2) strong factual cases for modification and two (2) weak ones (which are easier to defend).
If you desire to modify custody, or are defending against a modification as a custodial parent, it is helpful to determine what type of case you have. The more insight you have, the more likely you will make solid legal decisions. And the better job you can do in helping your counsel prosecute or defend your position.
Recovery from addiction or regulation of mental health issue.
Turning first to the weak cases. A very common situation arises where a parent has struggled with addiction or mental health issues and then recovers or has them managed. In this case, pent up guilt and the inherent desire of a parent to parent his or her child may lead to a custody modification petition being filed.
In most cases, standing alone, this is insufficient to demonstrate a substantial change in circumstances to modify custody in a child’s best interests. This change has little to do with the children and what is in their best interests.
It is very easy and natural for a parent to equate these as one in the same. Is this your case, or is recovery, just a part of other changes. Identifying these is the key to more effectively prosecuting or defending such cases.
Re-litigating shortfalls from prior custody proceeding.
The second is another type of weak case, and one specifically limited by Indiana’s custody modification statute, is where a party thinks a prior trial shortfalls resulted in the wrong physical custody decision. Under the custody modification statutes, it is generally impermissible to put on evidence that occurred before the current custody order.
By way of example, if the divorce court entered a custody order on May 1, 2009, and a non-custodial parent files a modification petition on May 1, 2011, the evidence as to a substantial change necessitating a change of custody must be that which occurred between these two (2) dates but not before (May 1, 2009).
In other words, to prevail, the non-custodial parent must demonstrate changes in between these two (2) times that makes it in the child’s best interests that custody be modified. Understanding this is a key to making or defending such a case.
A pattern of small things.
What is often the type of case that straddles both strong and weak cases are patterns of acts or omissions between. For instance, a custodial parent who gets angry and denies the non-custodial parent parenting time or phone contact is unlikely to serve as a basis for custody modification. Indeed, the trial court may believe it is petty. Many legal wrongs have no remedy.
On the other hand, it is sometimes the case that a situation like the example noted is actually part of a much larger pattern. Any one slight may not be actionable. However, when set out collectively, the situation is much different. A custodial parent may be acting in an egregious way not in the child’s best interests.
These cases are made up of the same facts. However, it is a pattern or frequency or depth of act and omission that may make or break a custody modification case or defense.
The smoking gun.
The strongest case for custody modification usually come from the “smoking gun” that was always suspected, but not able to be proved. For example, a father has long suspected mother of prescription drug abuse. However, such cases are difficult or impossible to prove.
Yet once in awhile a “smoking gun” event occurs. This hypothetical parent has a severe accident with the child and is found to be driving under the influence of these drugs. To prevail, a non-custodial parent is often advised to act at once. Six months later after rehab is too late in many cases.
Ciyou & Dixon, P.C. advocates find most custody case, at least in basic form, fall within one of these categories. Do you know where yours is at. Determining this covers two (2) important dimensions.
First, it allows a prudent decision to be made as to how aggressively address the matter. Second, with the type determined the facts can be developed to defend against or modify custody, preventing wasting time on irrelevant issues, such as circumstances that occurred before the last custody order.