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Can I reverse custody for my daughter?

Fullerton, CA |

My husband has 20/80 % custody of his daughter right now. He agreed to those terms because when he got the divorce he was not stable and sought it best for his daughter to stay with her mother. His ex-wife had a house where she ran a daycare out of now she no longer has that house. She rents a room at a friends house and shared the room with her 3 kids. My husband would like to reverse the custody 80/20%. Seeing as we have a house and she has her own room and we are more stable at the time than her mother is. We find it best for her to live with us at the time due to her mothers instability. We are worried about or daughters well being.

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Attorney answers 3

Posted

Without knowing the specifics of your case, I will say that generally one can file a motion with the court to modify an existing custody order. The court will make its decision primarily based on the best interest of the child, so you'll want to focus on that in your motion. List all the reasons that it's in the girl's best interest to live with you and her father, not her mother.

Posted

A few things you should know. There are two standards that the Court looks at when it comes to child custody orders. The first is the best interests of the child standard. That standard is primarily at play when it comes to temporary orders (aka pendente lite orders). The burden of proof is not that high. The Court makes its orders regarding modification of custody on the basis of what is in the best interests of the child (there are multiple factors that go into the best interests of the child analysis).

However, if it was a permanent custody order pursuant to Montenegro vs. Diaz, then you would have to show a substantial change of circumstances to modify custody. Now, to modify visitations, whether a permanent order or otherwise, you may not have to show a substantial change of circumstances, but for custody, you would have to do so, otherwise the Court will likely deny the request. To make a showing of a substantial change of circumstance to justify the modification of custody, the burden of proof is much higher than the best interests of the child standard.

The above materials do not constitute legal advice or opinions and should not be relied up on as such. Transmission of the information is not intended to create, and receipt does not constitute, an attorney-client relationship. Please seek professional counsel as nothing contained herein is intended to be a substitute for legal counsel.

Posted

ON THESE FACTS, A RELATIVELY SIMPLE MODIFICATION REQUEST CAN BE MADE. HOWEVER, THE TOUCHY PART IS WHEN THE MATTER IS HEARD. YOU ARE SUBSTANTIALLY CHANGING THE CURRENT ORDER, BUT WITH APPARENT GOOD REASON. DEPENDING UPON THE CHILD'S AGE, THE COURT MAY MAKE SOME INQUIRIES OF HER AS WELL. IT APPEARS THAT YOU HAVE A GOOD CHANCE OF SUCCESS.

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