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Barrister
Barrister, Lawyer
Category: Family Law
Satisfied Customers: 36226
Experience:  Attorney with 16 years experience
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My daughter got a divorce in March 2012. Her lawyer is a state

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My daughter got a divorce in March 2012. Her lawyer is a state senator and was in session at the time. His secretary handled the paperwork. She never drafted a separation agreement; the ex-husband's lawyer did it. My daughter read the separation agreement which set down visitation but somehow she missed the fact that she is not the primary custodial parent; they have joint custody. I don't know how she missed this, but her lawyer never looked over the document and no one explained anything to her about it. Suddenly her ex-husband is wanting more and more visitation and I think he actually wants custody. Can this agreement be overturned?
Hello and welcome! My name is XXXXX XXXXX I will try my level best to help with your situation or get you to someone who can.
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I am sorry to hear that her attorney did not do a particularly good job in representing her.. He should have sat down with her and gone over the agreement line by line and answered any questions she had. But that is politicians for you....
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At any rate, it isn't so much about "overturning " the agreeement as it is modifying it. She could file a motion to modify the custodial agreement and get it back in front of the judge who approved the initial agreement. As long as she is able to articulate, (with the help of the attorney) why she should be the primary custodial parent over the father, then the judge has the authority to modify the original custody agreement. Custody agreements are never set in stone and are able to be modified as needs change or the child's or parent's situations change.
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So botXXXXX XXXXXne is that yes, the custody order can be modified by the judge upon a showing of good cause and that it is "in the child's best interests".
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Thanks
Barrister
Barrister and 2 other Family Law Specialists are ready to help you
Customer: replied 3 years ago.

I don't know if it's too late to ask a follow up question; if not-does she have to go in front of the same judge? Both she and the ex live in Madison County now and she wants to get the case moved up there.

Customer: replied 3 years ago.

Also, what kind of things constitute a good reason for modifying the agreement for her to be custodial over the father? He doesn't have a job right now, his employment history is sketchy throughout, he is a music bum who has been known to be a marajuana user, he has never helped pay for anything except 1/2 of the child's daycare as required in the original agreement, which amounts to $55 per week, and my daughter has had to stay after him constantly for him to do that. This is necessary because if it gets a certain amount behind, they will drop the child and he'll lose his spot. That is absolutely all he has ever paid; even when they were married, he didn't help pay the bills. He can be found in a bar most nights, sometimes as the entertainment but just as often not. Is this enough to get a modification, do you think?

Customer: replied 3 years ago.

And one more thing....can any action be taken against the lawyer who "didn't" handle her case?

if not-does she have to go in front of the same judge?
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Yes, typically only the judge who entered the agreement would have jurisdiction to review and modify it. The exception is if he has retired or died, then a new judge would take over.
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Is this enough to get a modification, do you think?
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All the things you mention would be cumulatively good grounds for a modification. If nothing else, he is not setting a good example for the child. If it were me, I would approach it first as an obvious oversight in the order and then back it up with the character and behavior of the father to further justify why it was clearly an oversight..
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And one more thing....can any action be taken against the lawyer who "didn't" handle her case?

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Honestly, probably not. That is just not very thorough lawyering, but it isn't really malpractice because the client has some obligation to review the document and question anything that is wrong, doesn't make sense, or they don't agree with.
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Thanks
Barrister
Customer: replied 3 years ago.

One more follow-up: so, you don't think the case can be moved, even though both parties live in the other county now?

Yes, it could be moved if you were to file a motion to transfer jurisdiction and your ex didn't object to the transfer. But absent filing that motion to transfer and having it granted, the issuing court always has original and continuing jurisdiction.
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Barrister
Customer: replied 3 years ago.

So, if he does object he can keep it from being moved? and sorry, I don't understand that second statement about absent filing.....

He can argue that it shouldn't be transferred and the judge would then make the final decision.
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"But absent filing that motion to transfer and having it granted, "....I just mean unless you file the motion to transfer, the original court still has jurisdiction.
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Thanks
Barrister
Customer: replied 3 years ago.

Thank you very much for your help, especially on a Sunday of a holiday weekend.

You are very welcome...I work all the time...don't know what a holiday is...
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Thanks
Barrister
Customer: replied 3 years ago.

That is not good for you! Take the day off tomorrow...rest, relax, go to a cookout!