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Ely, Counselor at Law
Category: Family Law
Satisfied Customers: 102506
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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I have a daughter who turns 11 in December and a son who turns

Customer Question

I have a daughter who turns 11 in December and a son who turns 10 this May. They just moved back to my hometown from being over a 4 hour round trip. They BOTH express the want and desire to move in with me and their step-mom. They do not like the living arrangements that their mother has placed them in, at all. They have a new step-dad who has three girls and they stay in a two bedroom apartment. Needless to say, it is a little crowded and needing for attention. I live in Bowling XXXXX, XXXXXtucky and was wondering what my options were about them asking a judge to switch primary custodian, because we do have joint custody. I know she will fight me tooth and nail but my kids happiness is the most important thing to me, she simply loves the child support. Please Help!
Submitted: 7 years ago.
Category: Family Law
Expert:  Ely replied 7 years ago.

My name is XXXXX XXXXX I am one of JustAnswer's attorneys. I'll be helping you resolve your matter today.

Please remember that there might be a delay between your follow up questions and my answers because I may be helping other clients or taking a break.

Who is the MAIN custodian, i.e. who keeps the children the majority of the time?

Customer: replied 7 years ago.
My ex-wife is the primary custodian and I have visitation.
Expert:  Ely replied 7 years ago.
Okay - please tell me if the children have complained about this arrangement, and also if you have any criminal record and are you gainfully employed?
Customer: replied 7 years ago.
First of all, yes the children have complained of the arrangement of having to be moved to a new school near the end of the school year right at testing time. They moved from a house with enough room to support the step-dad's girl's visitation to an apartment where 2 adults and 5 children have to occupy the 2 bedrooms. I am currently in the United States Army getting Medically Discharged at Ft. Campbell, Ky from an injury sustained in Iraq on June 28, 2008. I have no criminal record.
Expert:  Ely replied 7 years ago.
Okay, I see. And thank you for your service.If you want primary custody, you have to put in for modification with a MOTION FOR MODIFICATION OF CUSTODY ORDERS. The Court decides on custody based on the rule of thumb of "best interest of the child." This includes, but is not limited to, general stability of the parent, financial stability, indoctrination of the child in the current school and environment, household condition and living condition of the child, other persons living in the house, etc.

You'd have to prove to the Judge based on those elements that the children would be better off with you. Is a crowded home alone enough? Probably not. But I'm sure if you knit pick, you can find enough to make a case.
The child's preference is taken into consideration but is NOT the deciding factor. Judges know that often, children will want to live with the adult that allows them the most freedom but is not necessarily the best custodian, so while the children's preference is noted, it does not define the judgment for custody - so do not focus on their want as being enough.You'd file and set for hearing the motion and have that hearing, at which the Judge would make a decision. Go to or for more info and the motion, or hire an attorney (recommended, and I can help you find an affordable one in your area).

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