Question:

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?

Answer:

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.