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I'm sorry to hear about your situation. There is some good news and some bad news, so I'll start with the bad: A court will not hold your ex-wife is not responsible for your voluntary behavior. That means that even though she has cats and the dander / dust mites / etc... are dangerous to your fiance's son, the court can't do anything about that. That's what's known as "attenuated" and outside of the jurisdiction of the court, as it does not impact your own children (which is within the court's jurisdiction), and you voluntarily let them be in your house (even though I understand that because of your love, it would be extremely difficult to send them away). So even though there is a significant consequence because of her owning cats, she has zero legal duty owed to your fiance's son, and a court could not force her to get rid of her cats as a result.
The good news is that the court would have jurisdiction to force her to get rid of her cats as a precondition to have custody / visitation of your son.
The discovered allergy is a "material change in circumstance" that would allow you to seek a modification of the custody / visitation order. When there has already been a Divorce Decree issued by the Domestic Relations Court which initially allocated the parental rights and responsibilities, any modification of the parental rights and responsibilities (i.e. Custody), must be brought by a motion requesting a change. The parent that wants to change or modify custody must file this motion with the same Court requesting that it modify its initial decree, citing the reasons that he or she believes the earlier decision should be reconsidered. In the meantime, the original decree will continue to govern the parties’ rights and responsibilities.
The Domestic Relations Court is guided by 3109.04(E) when there is a motion filed to modify the original allocation of parental rights and responsibilities. The legal standard is one that presumes to keep the status quo, maintaining the original residential parent. Courts do not want to see a tug-of-war between the parents as they file motion after motion. Sometimes it seems like a never ending battle with the children stuck in the middle as the parents continue to drag each other into court. For this reason, it is harder to gain custody of a child after the other parent has been awarded the status as residential parent.
However, when it is appropriate, the Court will modify its earlier custody determination. In order to satisfy the legal standard warranting a modification, the party filing the motion must demonstrate the following:
There has been a change in circumstances since the prior decree or there were facts unknown to the court at the time of the initial decree; only if the court finds that there has been a change in circumstances will it continue to the next step
This change in circumstances is jurisdictional in nature and absent this finding, a court cannot proceed to modify the prior decree based upon its finding that the best interest of the child warrants a modification
Note: this same change in circumstances language appears in 2151.42 dealing with dependency docket / CSB cases when legal custody to a non-relative is given and the parent wishes to modify that and have child returned home.
Whether it would be in the Best Interest of the Child to modify the decree, AND
When determining Best Interest, the Court is again guided by the 10 factors listed, just as it is in the original allocation when determining Best Interest
Whether the harm to the child caused by a change in environment is outweighed by the benefits of modifying the prior allocation of custody
Or the residential parent happen to agree to the change of residential parent (unlikely)
Or the child, with the consent of the residential parent, has been integrated into the family of the parent wishing to become the residential parent through modification
As can be seen from the above standard, once a decree has established one of the parents as the residential parent, the parties are no longer on equal footing; the party filing the motion must not only prove that awarding them custody is in the child’s best interests, but that there has been some change since the earlier decree as well. While Courts have said that the change in circumstances doesn’t necessarily have to be “substantial”, it does have to be of a substantive in nature and not something trivial. It is advisable to speak with a family lawyer regarding the sort of circumstances that would warrant filing a motion.
Now you can do this on your own, although I would highly suggest getting an attorney to do it. Here are forms (for Cuyahoga County, but the forms could be modified for any county, or you can contact your county to see if they have county specific forms):
Motion to Modify Custody or visitation
Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, XXXXX XXXXX luck to you!
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