When we divorced in 2012, I gave my ex-wife custody of my son, and I received visitation. She suffers from depression and anxiety, and to my knowledge, she is still currently taking medication to treat them. Now, it seems at times she becomes overwhelmed and I am concerned for my son. Are my concerns enough to go to court to get primary custody?
In order to change an existing custody order, you would need to file a petition for modification with the court. In most states, it is required that once a custody determination has been made by the court that there must be a “substantial change in circumstance” to warrant modification of that custody order.
The court must also find that the facts that would warrant a change were not known at the time of the original order, that you did not anticipate these changes and that a modification is necessary for the best interests of the child.
In Texas, a modification can be granted if the present environment endangers the child’s physical health, or the other party agrees to the change. Even though you were aware of your ex-wife’s mental health issues at the time the divorce was finalized, you could possibly argue that they have worsened to the point where it is affecting your child’s well-being.
The court’s primary concern is the child’s well being. A parent with a mental health concern does not necessarily make them unfit to parent or have primary custody; however, it is when their mental health begins to have a negative impact on the child that the court often steps in.
Remember, I am unable to provide you with anything more than divorce tips for men, so please consult a domestic litigation attorney in your area to obtain specific advice as to the laws in your state and how they impact your potential case.
To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, contact Cordell & Cordell.
Mat Camp is a former Lexicon Services Online Editor, who focused on providing a comprehensive look into all aspects of the divorce experience. On MensDivorce.com, he concentrated on issues, such as parenting time, custodial rights, mediation, the division of assets, and so much more.
Mr. Camp used the wealth of experience of Cordell & Cordell attorneys to bring tangible answers to reader questions in Ask a Lawyer articles, as well as offer a step by step process through the divorce experience with Cordell & Cordell Co-Founder and Principal Partner Joseph E. Cordell in Divorce 101: A Guide for Men.
Mr. Camp used thorough research to highlight the challenging reality that those who go through divorce or child custody issues face. He helped foster the continued success of the Men’s Divorce Survival Guide, the Men’s Divorce Podcast, and the Men’s Divorce YouTube series “Attorney Bites.”