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Author Topic: Motion to modify  (Read 3596 times)

4897srobot

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Motion to modify
« on: Mar 21, 2009, 06:02:03 AM »
What are the typical hurdles one has to overcome to get a change of custody?  What constitutes a change in circumstances of this magnitude?

In my case, ex-wife's new husband assaulted one of the kids, pled guilty to it, but she is blaming and grounding the daughter for it.  She also does not foster a good relationship between me and the kids, deliberately excludes me from key events.


gemini3

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Re: Motion to modify
« Reply #1 on: Mar 21, 2009, 11:45:50 AM »
A material change in circumstances means something big that is having (or would have) a negative impact on the children.
 
Usually the courts are hesitant to change custody, even if they disagree with what the CP is doing, because the thinking is that a custody change is disruptive for the kids, and they don't want to do that unless the kids are being negatively impacted by whatever the situation is.  If the perceived impact of changing custody is seen to be more than the impact of whatever the change in circumstance is, they will most likely leave the custody situation as is, and perhaps modify the parenting plan.
 
I would think that the assult thing would count as a material change, but I am not an attorney.
 
How is this affecting your children?  Have they had any behavioral problems?  How are they doing in school?  Has their behavior or performance changed since the last order?

trystero

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Re: Motion to modify
« Reply #2 on: Mar 23, 2009, 01:54:31 PM »
My take, you have grounds to go down this road because if he plead guilty, that means he was charged. 

You should go get the police 911/call for service reports for the date of the occurrence.  That will get you the details collected by 911 operator, the name of the responding/arresting officer(s), and some take on their notes from the incident.  Try to talk to the officers and get a feel for their observations.  That will help you garner how strongly their testimony would be in court.  If they think that perhaps she started it but only she had marks on her or that evidence didn't support the notion that she started it, those types of opinions will matter.

Then, take that info and go see an attorney or two.  See if they think you stand much of a chance.  I say get a couple of opinions to see where the majority land.  I've been down this road myself with cops and amublances being called and my kids bearing witness to the DV, but nobody yet has ever been arrested, convicted or taken to the ER, so my case has always been extremely weak.  I pulled child service reports, talked to local DV agencies about the situation. After the last incident, even though I couldn't find a lawyer who thought I stood much of a chance, I still filed for an Emergency Modification of Parenting Time on my own.  I just couldn't do 'nothing'.

Got my motion, had a hearing, but because I wasn't well prepared for the hearing it wasn't pretty.  However, message received by opposing party was that A) I knew what was going on, B) I had resources to find out more info should something else happen.  The unfortunate side effect was C) opposing side knew I was watching and would therefore be reluctanc to call 911 in the future.....

So, for me it came down to a personal choice.  After several years, and several too many incidents and calls to 911 I had to act.

Bottom line, find out on your own as much info regarding the incident.  Its cheap, like $10 to request the police records here in Colorado.  Just need the address and the date of the indicent.  Then you'll know whether you're in a position to do something. 

Depending on when this occurred, you could attempt to et a restraining order for daugher?  Don't know how likely it is to approve.  ...

 

4897srobot

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Re: Motion to modify
« Reply #3 on: Mar 24, 2009, 05:54:43 AM »
There is a temporary restraining order.  I filed for one on behalf of the kids....is being heard in a few days to determine if it warrants a full order of protection.  However, a significant factor is the mother's taking sides with the abuser and even grounding the daughter for talking to me about this.  Some of this might be more appropriately addressed in a motion to modify, I was thinking.

trystero

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Re: Motion to modify
« Reply #4 on: Mar 25, 2009, 06:33:58 AM »
The motion to modify would square up best with the courts IMO.  Sticking the 'Emergency' in front of the motion results in a hearing within 7-10 days in Colorado.  I would think it becomes either necessary or OBE if the PRO is granted, how can the existing ordered visitation be enforced if they cannot come within 100 ft of each other???

Out of my area of any experience. 

Without the RO, I would think you need the Motion to Modify.  Perhaps even with the RO you'd be less exposed with a modified parenting plan.  I think even in really bad circumstances the courts like to see atleast supervised parenting time allocated/acknowledged for best-interests of kids involved.....


 

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