Custody Modification


My husband’s ex-wife had custody of their daughter when they were divorced. In 07’ after being with a man for 2-3 years they married but in less than 3 months she left. She moved in w/ her mother and brought the daughter since that time we have had primary custody of his daughter (not legally) In 08’ he filed for a custody modification and they of course went to mediation where they agreed to joint custody with her having primary Sun-Thurs and my husband Thurs-Sun. (We actually have her 5 out of 7 days most of the time. There were other agreements made in their parenting agreement such as;

The parents agree that if either of them should move, they agree to give each other at least 60 days notice and meet prior to such a move to attempt to draw up a new parenting plan. She is in contempt of that. She moved and did not even tell her daughter.

We did find out b/c his ex-mother-in-law called him b/c of wanting to spend some time with the child and at that time told him that she actually kicked his ex-wife out after she didn’t show up for something that she had promised the child she was going to be at and the ex-mother-in-law said that was the final straw.

We have had the minor child for at least 80 if not 90% of the time for the last almost 3 years now. When her mother is in between jobs she would have her a little more but would end up leaving in the middle of the night and not come back until the next day, sometimes the child would wake up upset asking for her mom this even happened on her birthday.

She recently left the 7 year old child with this new person that she moved in with while she was at work and this person left the child at home alone. Mom then instructed the child not to tell her dad.

She also recently took the child when my husband had her and he told her not to and if they went by the paperwork it was his time to have her. We were at work and she went and picked her up.

The final straw was after 10 days of not seeing or talking to her daughter recently even after the daughter left her messages and texted her we dropped her off w/ her on a Wed. and picked her back up on Friday. When she got home she told us that her mom took her and they spent the night with this man and she stayed and played with his son she then said that her mom kissed him the next morning when they left but her mom told her it was just a friend kiss and not to tell her dad. In the parenting agreement there is mention of exercising restraint and caution in itntroducing transitional dating partners to the child. She also just a month ago came home after being with her mom for 2 days and told us that some boy slept over in her mom’s room.

She cannot hold a job for a lengthy period she is out partying and has taken the child w/ her to such a situation.
We have kept records of the time that we have the child. We also learned from having the child and now taking care of her medical care that her mother was suppose to have her on medication that she did not and did not tell anyone else about. We have had to go get her asthma meds on a few occassions b/c she forgets it. When the child is with her mother she is usually left in someone else’s care. The mother has moved out of the school district where the child attends school and once my husband told her he wanted her to sign over primary custody to him she threatened to move her schools which she now says she is not going to do. Her own family knows that we have her the majority of the time and some have stated that she needs to be with us b/c her mother is not stable. It took about a year to get the child straightened out emotionally from everything that has gone on with her mother. She has 3 step siblings here and is very happy, healthy, involved in extra curricular activities, and church with us. Because my husband has informed her that he wants primary custody of the child she now says that she is going to go by the paperwork, which has not been done at all, is it possible for him to get a temporary order from a judge until they can go to trial for permanant custody?

Also my husband has been under order to still pay her child support during all of this b/c she lied about her jobs when they went to court last & b/c of everythig that has been going on ie: medical expenses for the child b/c the mother told us she had insurance which we found out she did not when we took her to the doctor and then went to get her meds. She recently pushed the child support issue and my husband told the judge then that he had neglected to pay the mother but he was not neglecting his child b/c he had her 90% of the time. The judge told him then he needed to file papers and so we are working on that. When filing a motion to modify custody in this situation what is the best course of action to take would it be based on a substantial change in circumstances? How in depth does the motion have to be? What exactly should I state? We are starting the process just to save some money we do have an attorney that can take over but I have proceeded pro se before.

I know that this is a lot of information but I’m trying to give as much as possible b/c it is a big step to take and b/c my husband is going to try to get the paperwork changed to match what is actually going on the burden of proof is on him and I know judges don’t particularly like to take children from their mother but in this case we can prove she is not fit to have her there is no stability.


If you have an attorney I suggest you allow that person to assist you in drafting the motion. The motion to modify can only contain allegations from the point in time that the last parenting arrangement was put in place, ie the increase in her erratic behavior, presence of boyfriends. You may then have your attorney schedule a temporary hearing.