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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 09-13-2011, 03:57 PM
anotherSTEPmother anotherSTEPmother is offline
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Question Material Change - Questions



Hello, I was wondering if anyone here had successfully changed custody and or access in a motion for material change.

We are being accused of not providing evidence of a material change..

How did you "prove" this?
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Old 09-13-2011, 04:23 PM
Linear Linear is offline
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The case authority on this Gordon V. Goertz

The "change" must be substantial enough that the children's immediate and future needs are in peril. Essentially, without the change in access/custody the children are likely to suffer adverse effects, if they haven't already.

This can be quite difficult to show in many circumstances, so it's tough to change a status quo arrangement. The threshold must be met before the court will proceed to look at the best interests of the children

What are the changes you're claiming meet the threshold warranting a fresh inquiry into the best interests of the children?

Linear
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Old 09-14-2011, 03:12 PM
anotherSTEPmother anotherSTEPmother is offline
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Here is the coles notes version.

Parents lived over 1.5 hours apart. The OCL recommended at the time of the original that due to the distance dad could not have 50-50 access because not practical to take child to school, activites etc.

Dad moved into the child's school zone and within 5 minutes from mom.

Dad requesting more access as the material change is that he is able to parent on a more involved level.

The child has requested additional access to dad as well.
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Old 09-14-2011, 03:49 PM
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Additionally mom refusing to consent to allow child to take part in therapies that have been recommended by his school and tutoring (he is very far behind and dad is trying to get child involved in tutoring on his time but the tutor says one week is not enough)
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Old 09-14-2011, 03:49 PM
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I've seen 2 similar cases like yours where the parent being available on an increased basis did "not" constitute a material change. However, in those cases the father was already receiving "generous access" the court said.

The onus is on the parent requesting the variance to show that the threshold has been met. Meeting the threshold does not in any way guarantee the variance will happen, only that the court will enter into a fresh inquiry and determine the best interests of the children.

Without further details it's tough to form an opinion on your case - but this may very well be the perfect opportunity to provide the 50/50 shared parenting children of divorced parents should have.

In our case, the father is seeking 50/50 on a 7day rotation (he is not willing to do any other variant of a 50/50 regime). But there are a number of factors which complicate that possibility. The most prominent is that the children have a half-sibling in their primary home. An assessment was done, and it was concluded that the half sibling, who since birth has lived with her two older siblings and is very closely bonded to them, would suffer adverse consequences if a 7 day rotation were implemented. There are other factors involved, but this should give you an idea of factors involved in determining the best interests of children.

Linear
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Old 09-14-2011, 04:53 PM
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Does the OCL recommendation specifically note the fact that distance was the primary mitigating factor towards a recommendation of less than 50-50 access?

If the answer to that is YES, then I would argue that the father making arrangements to move closer and to be able to show repeated requests to be more involved (that I assume are being rebuffed by bio-momma) would constitute a material change.

ie. if The OCL recommendation outlined distance as the limiting factor, that is no longer an issue, ergo material change.

Mother rebuffing father's attempts to be more involved, would constitute a grounds on asking for a custody change and costs, since she is not willing to be reasonable and to act in the child's best interests to have a relationship with both parents.

You won't get the custody change...but ask for it anyway. You ask for a change in custody due to her not acting in the child's best interests and promoting the child's relationship with the NCP.

Then you slap and OR statement in there to both be reasonable, and to give the judge an out.

OR Dad is asking for access to be increased as per the proposed parenting plan attached as Exhibit X.
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Old 09-14-2011, 09:01 PM
anotherSTEPmother anotherSTEPmother is offline
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Thank you this is helpful. We have sent 2 offers to settle but have received no response. We hear nothing even from her lawyer at this point.

We are suggesting too that if no custody change that dad be allow to register the child or take child to doctors and make decisions without consent from mom. BUT provided info to mom.

that way mom gets to maintain her title as the reining sole custodial parent but at least the child will get what they need. kind of like a parallel parenting arrangement
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Old 09-20-2011, 01:36 PM
anotherSTEPmother anotherSTEPmother is offline
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Quote:
Originally Posted by Linear View Post
I've seen 2 similar cases like yours where the parent being available on an increased basis did "not" constitute a material change. However, in those cases the father was already receiving "generous access" the court said.
Just a question, more of a thought, not sure if this logic makes any sense... Is it was currently a Joint/shared custody agreement with 50/50 access and then one parent moved away, lets say to the 1.5 hour distance, then it would be easy to say material change, the parent who moved can no longer meet certain aspects of childs day to day needs and child would be out of area too much, etc.

I am unsure why that when the change is to the benefit of the child that it may not be deemed a change at all.

Right now dad has first 3 weekends of each month.
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Old 09-20-2011, 02:29 PM
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Quote:
Originally Posted by anotherSTEPmother View Post
Just a question, more of a thought, not sure if this logic makes any sense... Is it was currently a Joint/shared custody agreement with 50/50 access and then one parent moved away, lets say to the 1.5 hour distance, then it would be easy to say material change, the parent who moved can no longer meet certain aspects of childs day to day needs and child would be out of area too much, etc.

I am unsure why that when the change is to the benefit of the child that it may not be deemed a change at all.

Right now dad has first 3 weekends of each month.
Not sure 1.5 hours is material. It depends on the age of the children.
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Old 09-21-2011, 09:11 AM
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The child is 6.
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