Can a affidavit over rule a court order?
i have primary physical custody of my kids but my ex joint custody he had them sign an affidavit and now said he can see them any time he wants with out the rules of the order applying. the kids are 14 and 16. i just need to know if its true.
4 attorney answers
No. The affidavits have no legal effect at all on their own. They would simply be evidence submitted to the court IF your ex were to file a petition for change of custody, and IF the Judge chose to honor the wishes of the children. That petition can be contested, and there would be no change of custody unless the Judge makes a specific finding that it is in the best interest of the children to grant the change of custody. You need to find an experienced custody attorney to file a motion for contempt for failing to abide by the current custody order, and to defend any petition for change of custody.
I am exclusively a family law attorney, practicing primarily in the metro Atlanta, Georgia trial courts. However, I handle appeals from anywhere in Georgia.
The affidavits have no effect. The judge ordered the custody arrangement and only the judge can change that. The affidavits can be used only in the course of a modification of custody petition that your husband or children can file.
Your previous Court Order (assuming your ex has not filed a modification that has already been addressed by the court) still stands. Even if it is your children's desire to live with their Father, the court must still determine that it is in your children's best interests to live with him. While their ages give them a lot of say in where they want to live this may not necessarily be best for them. For instance, if Dad works the night shift and they want to live with him because your sexually active daughter has a boyfriend and feels you don't give her enough freedom, the court may find that it is not in their best interests to be unsupervised at Dad's house each night.
Bottom line, the affidavits alone without being filed along with a court action are meaningless. If your ex wants to pursue this in court he has that right but don't let him bully you into changing custody without a Court's Order.
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Parties cannot on their own draw up documents to overturn a judge's order. The only possible use of a document, depending on wording, would be if a judge considered it in a modification case. In other words, your ex is either ignorant of the law or deliberately lied to you. Note that the wishes of a 14 and 16 year old may play into the outcome if a court case is filed.
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