CHILD CUSTODY  

Q. If the custodial parent dies, will I have to go to court to get my children to live with me?

A. It’s a possibility. Presuming no other conservators are named in the most recent court orders, the children will go to live with the other parent in the event the custodial parent dies. If a relative of the custodial parent takes the children, court action may be needed.

Q. What if the custodial parent leaves a will designating someone other than me for the children to live with?

A. The will would simply act as an expression of the custodial parent’s wishes, but it is not binding as state law prevails. The children would still come to live with you.

Q. My child wants to come live with me. What should I do?

A. Children who are 12 or older may designate in writing which parent they want to live with. The court does not have to agree and can make the child stay where they are. If both parents agree and the child signs the statement, then the court will usually go along with everyone’s wishes. If there is an existing court order, file a motion to modify to ask the court to change the order.

Q. If everyone agrees that my child should come live with me, do we have to go back to court?

A. Yes. It would not be a difficult process if everyone agrees, but it is still necessary. Until the court signs a new court order, you are still responsible for paying child support and the custodial parent can still demand the return of the child.

Q. There has been physical violence during our relationship. Can this be used against a parent even if the children were never abused or injured?

A. Yes. Acts of violence are taken very seriously by the courts. If one parent was physically violent with the other parent, even if the children were never hurt, this can be used as a basis to restrict custody or visitation with the children.

Q. What does it take to change/modify the custody and have the children live with me?

A. An attorney is necessary to help you with this. You must demonstrate to the court that (since the last court order was signed) there has been a material and substantial change in the child’s circumstances or child’s residence. If the modification is requested within one year of the last order, you would have to show:  (a) that the child’s present environment may endanger the child or significantly impair his or her emotional development; (b) the custodial parent is the one requesting the change or agrees with it and that the change is in the best interest of the child; or (c) the custodial parent has voluntarily left the child with you for at least six months.