I have joint custody of my 2 kids but some things were not clear in the original order, can I lose custody if I go back to court

Asked over 1 year ago - Wilsonville, OR

I have had an order in place for over 3 years now, but some things like specific pickup / dropoff times (days were in it but not times) and birthdays and holidays were not clearly covered. Now my ex keeps them whenever the whim hits and I have no legal comeback since it is not in the papers. We get along sometimes but on occasion we have both done things we regret (no physical violence). If I try to go back to court to clarify some things can I lose my joint custody?

Attorney answers (2)

  1. Jay Bodzin

    Contributor Level 20

    2

    Lawyers agree

    Answered . Joint custody lasts only so long as both parents agree to it. Either one can file a motion to modify with the court, asking that a specific parent be awarded primary legal custody. Of course, there's no guarantee that the parent who files the motion will be the one who actually gets custody of a child. The court makes this decision according to the best interests of the children, by considering which parent has been primarily responsible for raising them (if any), who seems to have a better interest and attachment to them, and who can be more counted upon to foster a continuing relationship between the children and the other parent.

    It sounds like joint custody is not working for you in this case. If you and the other parent can't agree on exchange times, then joint custody may not be for you anyway. If the terms of the judgment aren't specific enough to enforce, then you may want to modify it to be more clear. There is always the risk that the court will side with the other parent, but that risk is present anyway - he could file a motion to modify himself, any time. I generally do not advise people to avoid taking legal action to protect their interests just out of fear that someone else may do the same.

    You should consult with an attorney if you want to modify custody terms. You can contact the Oregon State Bar for a free referral at 503-684-3763.

    Please read the following notice:

    Jay Bodzin is licensed to practice law in the State of Oregon and... more
  2. Jeffrey K. Traylor

    Pro

    Contributor Level 9

    2

    Lawyers agree

    Answered . There is always a risk that when you go to court you may lose. If either you or the other parent ask the court to make a custody decision it will. Joint custody is only awarded by agreement. That said, based on what you posted I would recommend mediation in your case. It sounds like the problems you are having are more logistical in nature rather than substantive. If I was in your situation I would give a call or write an email to the other party and lay the cards out on the table. Let them know that you would rather avoid going to court if possible but the two of you need to address the problems and set some rules. I don't think you lose much in your situation (at least from what I know about it) by abandoning the trial by ambush route.

    If you attend mediation and it is successful you could file a stipulated supplemental judgment by agreement that addresses some of the issues you are having with a more detailed parenting plan. This will almost certainly be less expensive than litigation.

    Remember, when you go to court you are asking a judge to make a decision that will greatly affect your life, and that judge will have about six hours to get to know you and your situation. That decision will then bind you for years. It is almost always better to try to work things out by agreement first if possible. The agreement you can live with can be much better than the ruling you can't.

    I would recommend contacting an older mediator, preferably a former judge, that practices near where you live. In my experience such individuals tend to be the most effective. I would also be happy to mediate for you if you want to give it a shot. Good luck. -Jeff

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