Question:

Can I change my custody agreement and honor my child’s request to move in? I have a reasonable relationship with my ex-spouse, but if they are not cooperative to the request, how should I proceed legally, so that the court knows that this is my child’s request?

Answer:

I have not been retained as your attorney so I cannot give you legal advice. However, I can offer some general information that may help you.

Because you already have an existing custody order, you will need to petition the court to modify custody. If Tennessee is the same as the state that I am licensed to practice in, Arkansas, you will have to show the court that there has been a “material change of circumstances” since the last court order and that the change you are asking for will be in the best interests of the children.

Since you are bringing the petition to modify custody, you will have the burden of showing the court that a “material change of circumstances” exists. It is important to note that in my state, the court will only focus on events that have happened since the last court order that you feel illustrate why there has been a material change in circumstances. The court will not relitigate anything that happened earlier. Keep in mind that, at least in Arkansas, the primary consideration in all cases involving children are welfare and best interests of the children; all other considerations are secondary.

Because my particular state is “best interest of the child” state, one thing the courts will consider is the preferences of the child—if the child is old enough. In Arkansas, a twelve-year-old child would likely be considered old enough to be heard by the court.

However, in a modification case, the big thing the court is going to look at is what has happened since the last court order to warrant a custody change. It will really depend on all of the facts of the situation as to whether or not a court will think a child’s preference alone is enough of a significant to warrant a change in custody. In your petition, you can state that your child wants to live with you; however, you may need more than that as a reason for the court. However, this will at least tell the court that your child is wanting the change.

To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including Arkansas divorce lawyer Giana M. Messore, contact Cordell & Cordell.