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Roger, Attorney
Category: Family Law
Satisfied Customers: 30903
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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Three months ago, my ex entered a DVI against my husband for

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Three months ago, my ex entered a DVI against my husband for alleged abuse towards my and my ex' son. At the time he also asked for emergency custody which was not granted, but he kept my son for the last three months with zero contact with me anyways. The DVI case was dropped for lack of any evidence (even from child services and putting the child on the stand who was caught 3x lying). Now he entered an emergency motion for sole custody and only supervised visitation for me (while at the same time switching our son's school without telling me).
How successful can this last motion be?
He is already in contempt of court for withholding my child from me.
I did not want to fight for sole custody, but in light of all this would it be wise to? I know judges do not like to grant such arrangements and I do not want to look bad in court since the child does prefer to be with the father as he has been brainwashed religiously.
Submitted: 6 years ago.
Category: Family Law
Expert:  Roger replied 6 years ago.

If he wasn't granted emergency custody, it's not likely that he'd be granted sole custody of the child. In order for a person to even have standing to file for a modification of custody, there has to be a material change in the arrangements - this is a change in the home environment, remarriage, a move, a loss of employment, a criminal conviction, drug or alcohol addictions, etc.


If none of these are present, the request for custody shouldn't go anywhere.


Because he has taken this hard line, you would be justified in requesting sole custody for yourself.


The child's preference is not outcome-determinative. The judge will consider the child's preference, but the judge must do what is in the child's best interest.

Customer: replied 6 years ago.
I left him 5 years ago and remarried and we just had another child three months ago (coinciding with the alleged DVI timing). I am now not employed because of maternity leave and going back to grad school in the fall.. that is a major change, but not a negative one, is it?

We also moved two streets over to a larger house with three bedrooms and a bigger backyard for the kids and my work, but it isn't to another city, still the same neighborhood so that my 10 year old would not have to change schools and find new friends.

My ex is VERY religious and has formed my son to believe that since I left the marriage, I am the bad parent and that he should be raised by someone who is of the same faith (I did not change religions, just left him for other reasons of his fault).
My son was fine with my new husband until 3 months ago when the serious brainwashing began.

I think this is not good for my son and will go ahead with the sole custody, but want to make sure I am not making any mistakes. How can I build my case so it is stronger from my end?
Expert:  Roger replied 6 years ago.
No, none of this is a negative material change.

All you can do is tell the judge that the child is better off with you and that he has a more stable environment.
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Customer: replied 6 years ago.
He does. I have documentation and history of that. Thanks!

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