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Daniel Solutions
Daniel Solutions, Divorce Lawyer
Category: Family Law
Satisfied Customers: 9934
Experience:  Practicing Attorney for over 15 years
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I am a deployed soldier and will be home in about 3 months.

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I am a deployed soldier and will be home in about 3 months. My kids mother and I are separated. She is living in a two bedroom one bath house with my 4 year old girl and my 2 year son. The children share the same room. She has no job and wrecked the truck I was providing for her. I paid all her bills all the way until December when I found out some guy was living there. She has no job and has done nothing with the income tax that she got 60% of. Marijuana is smoked in the house and the guy that has been around has been a problem in the past in a issue involving my children. I am thinking of sending my mother a POA to stand in as a legal guardian until I return. Should I call CPS? Also if I were to try and gain custody of the children what kind of chance would I have of getting my children?
Submitted: 5 years ago via TexasChild-Custody.
Category: Family Law
Expert:  Daniel Solutions replied 5 years ago.
Thank you for allowing us to assist you with this problem.

I'm very sorry to hear that you are dealing with this problem while deployed and that your children are facing this problem.

You can attempt to give your mother a POA but that most likely will not help you. A better option would be for you to contact CPS to investigate and make sure they are aware that your mother is available to care for the children until your return. However, remember that CPS can only truly help you if they are able to witness some immediate danger to the children. I only caution you because if CPS does not find any problem that could ultimately hurt your chances of seeking custody when you return because the court. When you return you can seek a change in custody based upon what you shared.

Any person who is affected by the order can ask the court to modify or enforce the order. Before the court can grant a modification, it must find:

1. that the modification is in the best interest of the child;

2. that the circumstances of the child, a conservator or a party affected by the order have

materially and substantially changed since the order was signed by the court.

3. that a child over 12 years of age has filed with the court a written preference for a different primary managing conservator. However, since you children are young this factor would not be an issue

4. that the primary managing conservator has voluntarily given up care and possession of the child to another person for at least 6 months.

If the change is requested within 12 months of the original order, you must also show one of the following:

1. The child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development;

2. The person entitled to establish the child’s primary residence is consenting to or bringing the motion for the best interest of the child;

3. The person entitled to establish the child’s primary residence has voluntarily given care and possession to another person for at least 6 months and a change would be in the child’s best interest.

The courts have identified several events that amount to a material and substantial change. Marriage to another person can be a material and substantial change. A change in residence, age, medical condition, employment, criminal history or the relationship between the parents making the current orders unworkable can be found by the court to be a material and substantial change.

The process to modify a current court order affecting custody, visitation or support begins with a petition to the court asking for the modification. You will probably need the assistance of a lawyer to file a proper petition because there are several things that must be in the petition and you will need to make sure that the petition is properly served on the other party. Once the petition is filed and served, the court can enter temporary orders if properly requested. If the modification is agreed to by the other party, the process can be completed relatively quick. If the other party wants to contest the modification then the court will have to schedule the case for trial.

Customer: replied 5 years ago.
So if I don't call CPS and just file for custody when I return then I may have a chance of custody if she is still doing the same thing. I mean can they make people take urine tests or anything like during custody battles?
Expert:  Daniel Solutions replied 5 years ago.
I can not tell you if you should or should not call CPS but I just want to realize that you will need to be able to prove the allegations.... or rather CPS must have evidence of the allegations. CPS can not force someone to take a urine test solely based upon a reporting.
Expert:  Daniel Solutions replied 5 years ago.
I do suggest that it would be easier to make the efforts once you have returned but make sure you keep records of any evidence and events that support the factors I mentioned in my prior post that would help you obtain custody.
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