Changes to Your Divorce Settlement – Custody — Case Study

An Albuquerque woman came to us with a legal problem.  She had custody of her two young children and had been divorced for three years.  Her ex-husband wanted to change the terms of their Marital Settlement Agreement (MSA) and the established Parenting Plan that was part of their divorce.  He specifically filed for full custody of the children claiming that her new boyfriend was not a good influence on his kids.
In order to fully understand her issue, we had to ask this woman several questions:
1)     What was the current timesharing plan or visitation schedule?
The client indicated that their Parenting Plan specifically stated that he was to have the children every weekend from Friday, where he’d pick them up after school, until Monday morning when he was supposed to drop them back at school.  He also had visits with the children over the winter school break every other year.
2)     Has her ex-husband been seeing the children regularly?

The mother indicated that for the last four months he was regularly calling her at the last minute with excuses that he couldn’t take the children.  And last Christmas, he said he couldn’t take the kids two days before Christmas forcing her to cancel a trip that was planned in advance with her boyfriend.
3)     What, specifically, was he saying about the new boyfriend?
The client told us that the kids were frequently asking her if her boyfriend really was a jerk and doing drugs because Daddy said so.
4)     Who is this boyfriend? What’s his background, does he have a criminal past?  Is he living at the house?
The client pointed out to us that her boyfriend was not doing drugs and never had.  He had a job at Sandia Labs and drugs weren’t an issue.  She didn’t believe he had any criminal past and he never stayed overnight with her and the kids.
After gathering this information, we gave our client some basic information about whether her “ex” had any chance of taking her children away.
It is difficult to gain full custody of children from another parent unless the parent who is being accused as somehow bad or unsuitable has done harm to the children in some way.  This might include a boyfriend in the household if it’s determined that he is indeed posing some threat of harm to them.  The courts generally look at actual physical harm.  So, unless she or her boyfriend were proven to be harming the children in some way, it is likely that the Courts will not give her ex-husband full custody on this basis.   Also, if the ex-husband has not been seeing his children regularly as he should, the court is unlikely to take his request for full custody seriously, believing that he may have filed the Motion for Custody in retaliation against her for having a new boyfriend.
In order for her “ex-husband” to change the timesharing plan, he would have to prove there is a “change in circumstances” and that his requested change would be in the best interest of the children.
In this case, we went to court on behalf of our client, the mother, and the father’s attempt to change custody and visitation failed.
We see this tactic played out in many relationships.  Mom or Dad suddenly have a new love interest and the other party gets jealous despite the fact that they are no longer together.  The children become pawns or at least negative sounding boards and are drawn into the pettiness of unresolved feelings between the two adults.  Our client, the mother of two children, experienced just this scenario.  But was the father really just jealous?  Was there any real concern that his “ex’s” boyfriend might be bad for the children?  As lawyers, even when we win for our clients, we never truly know the motivation of the opposing party.  In the end, there was no proof that the boyfriend posed any negative threat, and the biological father looked foolish in court because he appeared to disregard his visitations with the kids in general – an issue that the Courts take very seriously.