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Motion to modify??

Posted by on Dec. 10, 2012 at 11:25 PM
  • 14 Replies

I emailed my lawyer last night about how things have been going with ex and she said she strongly recommends that we file a "motion to modify." I am assuming that means changing our custody agreement. But since it costs an exorbitant amount of money to email and ask questions I thought I would start here :)

If you have seen my previous post, you know my ex was abusive, doesn't give ill DD meds, cancelled her upcoming surgery without telling me, etc. So I email attny and asked what action I can take against him and she said motion to modify. I am not sure what all that entails. I am very sceptical of going back to court bc of how it went last time. No one (in the courts) took his behavior and my concerns seriously and I don't know if I should spend the money (that I don't have) to go back and try to change our custody agreement.

Has anyone ever done this before and if so, what was the outcome? What can I expect from this? Any info/advice would be appreciated. Thanks!!

by on Dec. 10, 2012 at 11:25 PM
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Replies (1-10):
conniejo75
by Bronze Member on Dec. 10, 2012 at 11:27 PM
Yes it is a petition to change custody and/or visitation. Unless you are ready for the fight (financial and emotionally)... don't put yourself through it. These things can get very expensive and then nothing gets changed :(
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PumpkinSpice8
by Member on Dec. 10, 2012 at 11:31 PM
It's basically asking to change something in the CO (custody, visitation, pick-up time, anything really).


What you will need to prove is that something has changed since your last co that would constitute a change in the court order. Example: your work schedule changed and you need different visitation pick-up times. You prove it by bringing in a copy of your schedule signed by your boss.


So: significant change + proof = modified court order


Just remember you need PROOF to do this. If you don't have solid proof of why and what needs to be changed then you will not get a modified co and it will be a waste money.
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LauraMH
by on Dec. 11, 2012 at 1:51 PM

What I want to change is the amount of time he spends with the kids. He won't take DD to doctor when sick and doesn't give her meds. I have e-mails of him saying things like "I won't take her to the doctor unless she tells me she doesn't feel good" and when I get her back she's sick as a dog and off to the doc we go. He also went behind my back and called the ENT and told them he didn't want her to have her surgery so the didn't schedule it like they were supposed to. Now she can't have it done until next year. The doctor has documented in her chart that she does not receive meds when she is with dad. And the ENT has record of the call saying no surgery (I have sole custody so he can't do that).

I have smelled alcohol on him but have no proof of that. There are a few other things but I don't know how I would get proof of some of the things. Do you think doctor records and emails are enough "proof" to constitute a change?

Quoting PumpkinSpice8:

It's basically asking to change something in the CO (custody, visitation, pick-up time, anything really).


What you will need to prove is that something has changed since your last co that would constitute a change in the court order. Example: your work schedule changed and you need different visitation pick-up times. You prove it by bringing in a copy of your schedule signed by your boss.


So: significant change + proof = modified court order


Just remember you need PROOF to do this. If you don't have solid proof of why and what needs to be changed then you will not get a modified co and it will be a waste money.


kagegirl
by on Dec. 11, 2012 at 2:30 PM

Yup, and I wound up with full custody. What you need is any and all documentation proving your allegations. Hospital records, doctors records, witness affadavits, the works. Then your lawyer will draw up a motion to modify the court order, asking for sole custody for you and using these instances and your evidence as proof on why it is in the best interests of the child. She may also decide to make some interrogatories into his financial and personal life, allowing her to have a better understanding and a better case for you. It is not wasted money. When was the last time you guys went to court?

kagegirl
by on Dec. 11, 2012 at 2:33 PM

They can be. Are there any cases of DUI or any dealings with the cops when he was drunk? If so, try and get copies of those. It can show habitual behavior. What are the other things? I can assist. I work with a local domestic violence shelter helping some women prepare their custody cases.

Quoting LauraMH:

What I want to change is the amount of time he spends with the kids. He won't take DD to doctor when sick and doesn't give her meds. I have e-mails of him saying things like "I won't take her to the doctor unless she tells me she doesn't feel good" and when I get her back she's sick as a dog and off to the doc we go. He also went behind my back and called the ENT and told them he didn't want her to have her surgery so the didn't schedule it like they were supposed to. Now she can't have it done until next year. The doctor has documented in her chart that she does not receive meds when she is with dad. And the ENT has record of the call saying no surgery (I have sole custody so he can't do that).

I have smelled alcohol on him but have no proof of that. There are a few other things but I don't know how I would get proof of some of the things. Do you think doctor records and emails are enough "proof" to constitute a change?

Quoting PumpkinSpice8:

It's basically asking to change something in the CO (custody, visitation, pick-up time, anything really).


What you will need to prove is that something has changed since your last co that would constitute a change in the court order. Example: your work schedule changed and you need different visitation pick-up times. You prove it by bringing in a copy of your schedule signed by your boss.


So: significant change + proof = modified court order


Just remember you need PROOF to do this. If you don't have solid proof of why and what needs to be changed then you will not get a modified co and it will be a waste money.

 



jamamama00
by on Dec. 11, 2012 at 2:41 PM

This just means that you ask the courts to change your agreement. For example: If your ex is using his power of decision-making to do things like cancel surgeries out of spite and to cause problems with you, then you can present your evidence to the court and ask them to have his decision-making rights over their health care terminated. Not trying to pry, but what type of meds are you talking about him not giving her? I ask because...I mean, if the guy is missing her Amoxicillin, the court is prob not going to be concerned about that (sadly.) But if he were, say, missing her insulin or something very serious, then that would be a big deal. Sometimes, it can be very inexpensive to modify (relatively speaking) depending on how big of fight he wants to put up and how elaborate your requests are. How did he manage to cancel her surgery? Did he do this just to mess with you, or does he supposedly have a legit reason?

victoriahearts
by on Dec. 11, 2012 at 3:38 PM

Basically the "motion to modify" is what the ladies have already said to you. Unless you are able to pour more money into this matter financially, then it isn't worth it because most judges will probably not see your concerns as "real". Best advice would be to make sure all your doctor's know that her father is not allowed to make and medical decisions, you are the only one that should be connected and allowed to change or cancel appts. Sorry your dealing with suck a jacka**

HyperMom38
by on Dec. 11, 2012 at 3:56 PM

Anything you do through the court system feels like an exercise in futility... but... I would still try.  You can get a modification into the custody agreement that basically states that neither of you can make unilateral decisions on your child's health care.  There is also some states that have laws that require parents to give children appropriate medical attention (ie. give medications, allow necessary surgeries, allow testing) if a doctor deems it "medically necessary".  For instance he would have to allow her to get tubes in her ears, but not a nose job.  He would have to give her a prescribed antibiotic, but not an over the counter cold remedy.

But basically anything you get through the court is just another piece of paper and you cannot make him do anything.  In order to get him violated for contempt of court for not following the modified order- YOU would have to prove he had not followed it.  And that's the hard part.  Doctors do NOT want to be involved in this stuff.  When my DD had her tonsils out her ENT Dr. said he wanted her to not do any traveling for the next week.  Well, that interfered with the ex's visitation.  He agreed to it in front of the Dr and then took me to court for it.  The Dr. refused to make a statement to the court on my behalf even though it would have proven that I was telling the truth and the ex was lying.  He just appologized to me and said he didn't want to end up with some sort of liability for backing me up!  The court didn't punish me in any way- the judge just gave the ex a day to make up for the one he missed which was the original plan in the first place, but it was such a hassle!

Robsessed98
by on Dec. 11, 2012 at 4:45 PM
I have. You just go to court and ask the judge to modify the custody agreement (and cs if applicable) to whatever terms you are wanting. He weighs what each of you want and modifies it as he deems fit. Take all proof and documentation you can against him to show the court, including any witnesses you have as to the things ex does.
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LauraMH
by on Dec. 11, 2012 at 6:01 PM

Our divorce was just finalized on September 5th but my atty recommended the motion bc of his behavior. She said if had only been 1 minor thing then she would not recommend it, but due to everything he has done she thinks we should.

I do have sole legal custody but we have joint physical. He gets them from Fri-Tue every other weekend and Mon-tue on the other weeks. I don't want him to have this much time due to his inability to properly care for the health of the kids and his temper. I do have notes from the doctor showing all her infections and they did document in her chart that he didn't give her her meds for 11 day over Thanksgiving. I am sure I could get the notes from the ENT about him calling and saying no surgery.

I was also thinking about contacting the school and asking a few people there to write statements. One of the women at the front office thought she smelled alcohol on his breath one day My DS teacher could discuss his behavior issues such as the day she raised her voice at a child and my 8yo son ran to the corner and got in the fetal position and cried for 30 mins, then said his dad yells like that. The principal could also attest to the fact that he fears his dad and thanked her when she said she wouldn't tell dad about his outbursts at school . I don't know if this would do anything but I think it may, if they would agree to write it.

His license is suspended for DUI I think but has been for years so I don't know if that would even matter. During our divoce he got in a traffic altercation and thretened to shoot the driver of the other car in front of the kids, they had to be questioned by the police. But this happened during our divorce and everybody knew (lawyers, GAL, judge) but no one cared.

I just don't want to go through the emotional stress and financial obligations if nothing is going to change. He can put on his "best behavior" for court and they all fall for his manipulations. That is why I am so worried about it.

Quoting kagegirl:

Yup, and I wound up with full custody. What you need is any and all documentation proving your allegations. Hospital records, doctors records, witness affadavits, the works. Then your lawyer will draw up a motion to modify the court order, asking for sole custody for you and using these instances and your evidence as proof on why it is in the best interests of the child. She may also decide to make some interrogatories into his financial and personal life, allowing her to have a better understanding and a better case for you. It is not wasted money. When was the last time you guys went to court?


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