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Atticus
Atticus, Lawyer (JD)
Category: Legal
Satisfied Customers: 35
Experience:  13 years handling child support cases, over 20,000 cases handled
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My ex-husband and I have 2 children together, ages 13 and ...

Customer Question

My ex-husband and I have 2 children together, ages 13 and 10. Their father wants our 13 year old to go live with him and has been telling our son for years that he could choose where he wants to live once he turns 13. Is this true? Can my 13 yo decide where he wants to live? I ask because their father is very unstable and has recently (past 2 months) been arrested for domestic assault to his live-in girl-friend and was just arrested again last week for DUI, resisting stop and arrest, and evading stop. He is an alcoholic and moves frequesntly due to not being able to pay his rent. Please tell me that I do not have to let my 13 yo son go live with him if he wants to!!
Submitted: 8 years ago.
Category: Legal
Expert:  Atticus replied 8 years ago.
Thank you again for trusting me with your problem. Please PRESS ACCEPT as soon as possible so that i can continue to help others.
Where there is domestic violence, this is something that the court may consider. The court will look at the preference of a child over the age of twelve, but this is not the determinative factor.
Kendrick v. Kendrick Shoemake:
In child custody cases, the law is well established that when a decree awarding custody of children has been entered, that decree is res judicata and is conclusive in a subsequent application to change custody unless some new fact has occurred which has altered the circumstances in a material way so that the welfare of the child requires a change of custody. Long v. Long, 488 S.W.2d 729 (Tenn. App.1972), Hicks v. Hicks, 26 Tenn. App. 641, 176 S.W.2d 371, 374-75 (Tenn. App. 1943); Woodard v. Woodard, 783 S.W.2d 188, 189 (Tenn. App. 1989); Wall v. Wall, 907 S.W.2d 829, 832 (Tenn. App. 1995). In other words, once the trial court has made an initial determination with respect to custody, it cannot entertain a subsequent petition to modify custody absent a material change in circumstances such that the welfare of the child demands a redetermination. See, e.g., Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App.1995). The party seeking a change in custody has the initial burden to show a material change of circumstances which affects the welfare of the child. Harris v. Harris, 832 S.W.2d 352, 352 (Tenn.1992). The burden remains on the party seeking the new custody arrangements to show that he or she is comparatively more fit than the party with custody under the challenged custody decree and to show that it would be in the child's best interests for the moving party to be the custodial parent. Gorski v. Ragains, No. 01A01-9710-GS-00597, 1999 WL 51141 at *4, (Tenn. App. 1999) citing Nichols v. Nichols, 792 S.W.2d 713, 715 (Tenn.1990); Rust v. Rust, 864 S.W.2d 52, 56 (Tenn. App.1993).

there is a strong presumption in favor of existing custody arrangements. Smithson v. Eatherly, No. 01A01-9806-CV-00314, 1999 WL 548586 at *2 (Tenn. App.1999) citing Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn.1993). The party seeking to change the existing custody arrangement has the burden of proof to show both that the child's circumstances have materially changed in a way that was not reasonably foreseeable at the time of the original custody decision and that changing the existing custody arrangement will serve the child's best interests. Geiger v. Boyle, No. 01A01-9809-CH-00467, 1999 WL 499733 at *3 (Tenn. App.1999); citing Smith v. Haase, 521 S.W.2d 49, 50 (Tenn.1975.); McDaniel v. McDaniel, 743 S.W.2d 167, 169 (Tenn. App.1987); Seessel v. Seessel, 748 S.W.2d 422, 429 (Tenn.1988); Hall v. Hall, No. 01A01-9310-PB-00465, 1995 WL 316255, at *2 (Tenn. App. 1995).
Expert:  Atticus replied 8 years ago.
Thank you again for trusting me with your problem. Please PRESS ACCEPT as soon as possible so that i can continue to help others.
Where there is domestic violence, this is something that the court may consider. The court will look at the preference of a child over the age of twelve, but this is not the determinative factor.
Kendrick v. Kendrick Shoemake:
In child custody cases, the law is well established that when a decree awarding custody of children has been entered, that decree is res judicata and is conclusive in a subsequent application to change custody unless some new fact has occurred which has altered the circumstances in a material way so that the welfare of the child requires a change of custody. Long v. Long, 488 S.W.2d 729 (Tenn. App.1972), Hicks v. Hicks, 26 Tenn. App. 641, 176 S.W.2d 371, 374-75 (Tenn. App. 1943); Woodard v. Woodard, 783 S.W.2d 188, 189 (Tenn. App. 1989); Wall v. Wall, 907 S.W.2d 829, 832 (Tenn. App. 1995). In other words, once the trial court has made an initial determination with respect to custody, it cannot entertain a subsequent petition to modify custody absent a material change in circumstances such that the welfare of the child demands a redetermination. See, e.g., Massengale v. Massengale, 915 S.W.2d 818, 819 (Tenn. App.1995). The party seeking a change in custody has the initial burden to show a material change of circumstances which affects the welfare of the child. Harris v. Harris, 832 S.W.2d 352, 352 (Tenn.1992). The burden remains on the party seeking the new custody arrangements to show that he or she is comparatively more fit than the party with custody under the challenged custody decree and to show that it would be in the child's best interests for the moving party to be the custodial parent. Gorski v. Ragains, No. 01A01-9710-GS-00597, 1999 WL 51141 at *4, (Tenn. App. 1999) citing Nichols v. Nichols, 792 S.W.2d 713, 715 (Tenn.1990); Rust v. Rust, 864 S.W.2d 52, 56 (Tenn. App.1993).

there is a strong presumption in favor of existing custody arrangements. Smithson v. Eatherly, No. 01A01-9806-CV-00314, 1999 WL 548586 at *2 (Tenn. App.1999) citing Taylor v. Taylor, 849 S.W.2d 319, 332 (Tenn.1993). The party seeking to change the existing custody arrangement has the burden of proof to show both that the child's circumstances have materially changed in a way that was not reasonably foreseeable at the time of the original custody decision and that changing the existing custody arrangement will serve the child's best interests. Geiger v. Boyle, No. 01A01-9809-CH-00467, 1999 WL 499733 at *3 (Tenn. App.1999); citing Smith v. Haase, 521 S.W.2d 49, 50 (Tenn.1975.); McDaniel v. McDaniel, 743 S.W.2d 167, 169 (Tenn. App.1987); Seessel v. Seessel, 748 S.W.2d 422, 429 (Tenn.1988); Hall v. Hall, No. 01A01-9310-PB-00465, 1995 WL 316255, at *2 (Tenn. App. 1995).
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Customer: replied 8 years ago.
So, in other words, just because my 13 year old wants to go live with his unstable father, doesnt mean that I have to hand him over? Is it costly to bring this to court and fight, or will the judge just let our son go where he wants?
Expert:  Atticus replied 8 years ago.
No you are not required to hand him over. If you have custody, then he will have ti file to gain custody from you. He has the burden of proof to show both that the child's circumstances have materially changed in a way that was not reasonably foreseeable at the time of the original custody decision and that changing the existing custody arrangement will serve the child's best interests.