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Ely
Ely, Counselor at Law
Category: Family Law
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Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Ex-wife just filed for custody modification. Wants my visitation

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Ex-wife just filed for custody modification. Wants my visitation ended or supervised. Her reasons stated were that I (the father) was causing our children emotional damage. Her "evidence" sited was her boy friend says he overheard me numerous times putting her down to the kids. The boyfriend has numerous legal run ins, violence to his ex wife, drug and fraud charges, jail imposed for not paying child support etc., all not prosecuted because he does have a lot of money and paid off his wife who brought all the charges against him. She told me that but would never agree to testify. I have never seen or talked to the boyfriend, he says he heard when she put me on speaker phone. Is this a large enough change in circumstance to be heard by the court? It is all crap, but I'm trying to decide how I should approach this since I am pro se. Thanks
Submitted: 9 months ago.
Category: Family Law
Expert:  Ely replied 9 months ago.
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your situation.

Is this a large enough change in circumstance to be heard by the court?

The question may be better asked as: Is this a large enough change in circumstance to qualify for modification?

Likely no.

Now she can file for a modification and it will be heard by the Court. However, just because she claims it is does not make it so, automatically. The Court may disagree.

Modification is only granted if:

1) there is a material change in circumstance, and
2) it is in the best interest of the child.

Even if true, are her accusations material change of circumstance? Not likely. First, unless a material change of circumstances is found to exist, the court's inquiry ceases. In this context, the term "material" relates to a change that may affect the welfare of a child. McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991).

"If, however, in respect to the previously known circumstances the evidence of change is not strong enough, i.e., either no change or the change itself does not relate to the child's welfare, there can be no further consideration of the best interest of the child because, unless there is a material change, there can be no consideration given to a modification of custody. The threshold — but not paramount — issue is the existence of a material change..." Wagner v. Wagner, 109 Md. App. 1 - Md: Court of Special Appeals 1996.

"The guiding principle of any child custody decision, whether it be an original award of custody or a modification thereof, is the protection of the welfare and best interests of the child." Shunk v. Walker, 87 Md. App. 389, 396, 589 A.2d 1303 (1991) (citing, inter alia, Queen v. Queen, 308 Md. 574, 587, 521 A.2d 320 (1987), and Skeens v. Paterno, 60 Md. App. 48, 61, 480 A.2d 820, cert. denied, 301 Md. 639, 484 A.2d 274 (1984).

Frankly, a parent being "mean" to a child is most often NOT seen as material unless she may have a psychiatrist testify that the "abuse" is hurting them severely. But in any case, the Court is much more likely to simply order parenting classes (if anything) if the Court believes there is a need, but very unlikely to curtail custody or make it supervised based on unconfirmed allegations of "putting the child down." That simply is not enough for material change in circumstances in most cases.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 9 months ago.

Not putting the child down, she claims that I am putting her (ex-wife) down.


 


Would I be better off to point out the things you just listed or focus on these things not being true or both or something else. Thanjks

Expert:  Ely replied 9 months ago.
D,

Ah, apologies.

Not putting the child down, she claims that I am putting her (ex-wife) down.

Well that is just... well, wrong.

A's allegedly being mean to B does not warrant B filing to modify custody. Even if the children hear their parents arguing. This is just petty.

Would I be better off to point out the things you just listed or focus on these things not being true or both or something else. Thanjks

While I cannot give direct advice, someone in your situation may be better off having the following defense:

1) This is not true, but
2) In the alternative, even if it were, this would not warrant a modification because it is not (a) a material change in circumstance and (b) in the best interest of the child.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Customer: replied 9 months ago.

Thanks so much. I'm curious how you feel about the following. Last question.


 


A lawyer I know who says he has never lost a case in 27 years told me to always simply answer, not guilty or not true. He says that if you do that the other party must prove your guilt and you don't need to prove your innocence. But if you reply all most anything else, the burden of proof shifts to you and then you must prove you are not guilty. I think I'm quoting him correctly, how does that sound to you?

Expert:  Ely replied 9 months ago.
D,

Please ask as much as you need to for this is why I am here.

Not quite true in all cases. At least not in family cases, sorry. In family cases, the burden is on the PARTY FILING THE SUIT to prove their case.

We are getting a little more subjective here. But suffice it to say that no Judge is going to actively think "I am going to shift the burden on him because his answer is more developed than simply "not true."

That attorney does sound intelligent and I would not discount their advice. Simply know that nothing is black and white when it comes to law.

Gentle Reminder: Please use the REPLY button to keep chatting, or RATE and submit your rating when we are finished.
Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 86566
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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