Request to modify custody


#1

Hi - thank you for the service you provide.

My ex-wife filed a motion to modify custody based on change of circumstances that are either outright false, a misrepresentation of the facts, or in my opinion not significant. I currently have custody for 156 days/year. My two questions and options:

[ul]Can I have the motion dismissed or will I be forced to attend custody mediation?

Can I use her motion to request 50:50 custody, or do I have to file my own separate counter-motion with my own case for change of circumstances? I’d rather use her motion as a vehicle to get 50:50 custody if mediation is already being forced on me.[/ul]


#2

To obtain a modification of a child custody order, a party has to prove that there has been a substantial change in circumstances. Even if you do not believe there is any merit in your ex-wife’s argument, this is for the judge to decide. You can always move to dismiss at the close of her evidence based on a lack of a substantial change.

If you also want a change, you can’t argue that there has not been a substantial change, but then ask the court to modify. I would also consider filing your own motion to modify to preserve your right to be heard. If you are going to court on her motion alone and then she doesn’t feel good about the prospective outcome, she could dismiss her motion, and you would be left without a remedy.