Change of custody mother to father?

Hi. I am the father and my children have been asking to live with me. I currently get them every other weekend and in the summer for 10 days or so and around holidays. They live 2.5 hours away and would have to change schools etc. They have asked numerous times and I have decided to ask the mother now. Her response was not good. The child support check to her from me is a big portion of her total income per month. There are reports of some minor physical abuse- scratches, nail marks etc. The kids are 14 and 12. The mother has a history of domestic violence and anger issues and there was a 50-b against her a few years ago and she had to attend anger mgmt classes etc.

With the above said, how difficult would you thin it would be to change custody in this situation? Would a judge listen to their testimony? Her housing situation is very unstable- place to place- breaking leases etc. I own my own home and have the room for them. Schools in my area are really good. In hers, not so good. I really think they would flourish here. They keep asking me and I feel I must do something. What kind of dad would i be if i did not?

Also, who pays her legal fees? Would I have to? I can afford an attorney but I doubt she can. We have been divorced for 5 years. Kids have been with her since separation.


In order to modify custody you must prove that a substantial change in circumstances has occurred which affect the children’s best interests. If your ex’s ability to care for the children has decreased dramatically you may file motion for modification, and the court will consider the issue of custody again.

Your ex could make a motion to seek attorney’s fee from you, however an award of the same is within the judge’s discretion.

the court never made a decision regarding custody though we do have a sep agreement incorporated into our divorce that states she has primary physical custody so I suppose that is the same.

I can just barely afford an attorney for myself - by taking loans etc- and I really doubt she can pay for one for herself so that must mean I can’t do anything unless I am willing to pay for 2x the atty costs. I won’t be able to pay both of our atty costs. That just seems wrong.

What is the usual “award” for atty costs that the “wealthier” party pays percentage wise?

If your separation agreement is incorporated into your divorce decree, the agreement is transformed into an Order of the court, and therefore to change the parameters for custody you must file a motion to modify custody based on a substantial change in circumstances.

Your ex may seek an award of attorney’s fees if she can demonstrate that she is unable to meet you on equal footing with respect to litigation. There is no guarantee she will be awarded attorney’s fees, and I cannot say what amount, if any she would receive.

I would suggest you meet with an attorney to discuss the specifics of your case, your finances, and the attitudes of judges regarding attorney’s fees in your county.

I sincerely wish you all the best.

Thanks Erin! I am in the process of contacting my divorce attorney.