Attorney’s Corner: Concerned About Your Child’s Welfare

kid wings of fly

Interviewer: I’m really worried about my kids when they are with my ex. I’m not sure if it’s just me or if there is really a problem, but my kids are really young and can’t speak for themselves. What should I do?

Attorney Soltys: I recommend that before making big waves you consult with a parenting counselor who is very familiar with issues surrounding divorce to get advice as to the appropriate way to handle the situation. Your concerns may be completely valid, but sometimes it is difficult to see things objectively and often our imaginations run wild and going with our gut might cause us to overreact. Overreacting can end up hurting the kids in the long run as children are extremely perceptive at picking up on friction between their parents. Visiting a counselor first to go over the reasons for your concerns can help you determine if the concerns are big enough to address with the other parent and come up with a game plan for how to address the issues.

Here are some examples that I see upset many clients, but they aren’t worth creating conflict with your ex. Some of these may be worth a mention if you have a good co-parenting relationship with your ex, but if you already have a high conflict relationship or you have mentioned it once, these types of topics should be left alone: The children’s diet during their time (too much sugar, too many carbs, not enough vegetables, etc), bedtime, tv time, the other parent introducing the children to a new significant other, and wardrobe issues (the child’s shorts had a hole, or you feel that an outfit wasn’t seasonally appropriate). Only extreme versions of these situations would warrant conversation with the other parent and documentation for potential legal intervention.

Here are some examples using the list above but extreme versions that warrant concern: Your child is diabetic and the other parent feeds them too much sugar and isn’t compliant with medically required dietary restrictions, your 7 year old is allowed to stay up until 11:00 every single school night and she is struggling in school because she has trouble staying awake, the television is used as a babysitter and the child is left alone for extreme amounts of time to the point of it rising to neglect, the other parent introduced the children to their significant other who has a criminal conviction for cruelty to children, or the child’s clothes are so ill fitting that they cut into their body and leave marks.

It can be really hard after a divorce to accept that you cannot control what happens in the other parent’s house. When you shared a home, you jointly created the rules. However, after divorce, the rules will be different at the two different homes, and you have to accept that the other parent won’t do everything the same – and this is okay. A parenting counselor can be very helpful in providing an independent and unbiased opinion to help determine if the concern is serious enough to confront the other parent or consult an attorney.

Interviewer: I’ve been documenting things that have me worried. What would you suggest I put on this list?

Attorney Soltys: You will want to document dates, times, witnesses, specifics of the incident, and take pictures.

Interviewer: Do I need to have certain grounds to request a modification of child custody?

Attorney Soltys: To modify custody, the court must find a change in circumstance that substantially affects the welfare of the child. This inquiry is very fact specific so if you have serious concerns about the well-being of the child, and there are new issues that developed or worsened since the last custody order, then consult an attorney to evaluate your case.

Interviewer: How hard is it to change the custody agreement? Right now it’s a 50/50 split, but I want primary physical custody with visitation for my ex.

Attorney Soltys: Again, this is very fact specific. If you meet the requirement of a change in circumstance that substantially affects the welfare of the child, then the court will determine if a modification of custody is in the child’s best interest. An attorney can help you determine if the changes are substantial enough that a court might consider modifying custody.

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