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I am trying to see if I have a case to file for primary

I am trying to...

I am trying to see if I have a case to file for primary custody of my 12 year old daughter

Lawyer's Assistant: Since laws vary from place to place, what state is this in?

Kentucky

Lawyer's Assistant: Have you talked to a lawyer yet?

Yes she charged me 100 dollars then told me it would cost at least 2500 more to proceed

Lawyer's Assistant: Anything else you want the lawyer to know before I connect you?

I had custody of my daughter till she was 10 then I had to have major surgery so my ex and I agreed she would go stay with him he had papers drawn up. she has been with him over 2 years I am completely recovered and my daughter wants to come back with me. he is fighting it. plus he refuses to give me her doctors name address or phone number. he will not give me any of her appointment schedules. he kept changing our visitation and he has taken her out of the state without informing me.

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Answered in 11 minutes by:
11/20/2017
RobertJDFL
RobertJDFL, Attorney
Category: Legal
Satisfied Customers: 15,206
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Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. I am reviewing your question and will reply back shortly.

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Customer reply replied 7 months ago
thank you I hope you will be able to help me.

Good evening,

Here is the relevant statute regarding modification of custody in Kentucky (I'm going to copy and paste it and then comment, and then we can discuss it):

403.340 Modification of custody decree --
Modification based on active duty deployment to revert back on parent or custodian's return. (1) As used in this section, "custody" means sole or joint custody, whether ordered by a court or agreed to by the parties. (2) No motion to modify a custody decree shall be made earlier than two (2) years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe that: (a) The child's present environment may endanger seriously his physical, mental, moral, or emotional health; or (b) The custodian appointed under the prior decree has placed the child with a de facto custodian. (3) If a court of this state has jurisdiction pursuant to the Uniform Child Custody Jurisdiction Act, the court shall not modify a prior custody decree unless after hearing it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child. When determining if a change has occurred and whether a modification of custody is in the best interests of the child, the court shall consider the following: (a) Whether the custodian agrees to the modification; (b) Whether the child has been integrated into the family of the petitioner with consent of the custodian; (c) The factors set forth in KRS 403.270(2) to determine the best interests of the child; (d) Whether the child's present environment endangers seriously his physical, mental, moral, or emotional health; (e) Whether the harm likely to be caused by a change of environment is outweighed by its advantages to him; and (f) Whether the custodian has placed the child with a de facto custodian. (4) In determining whether a child's present environment may endanger seriously his physical, mental, moral, or emotional health, the court shall consider all relevant factors, including, but not limited to: (a) The interaction and interrelationship of the child with his parent or parents, his de facto custodian, his siblings, and any other person who may significantly affect the child's best interests; (b) The mental and physical health of all individuals involved; (c) Repeated or substantial failure, without good cause as specified in KRS 403.240, of either parent to observe visitation, child support, or other provisions of the decree which affect the child, except that modification of custody orders shall not be made solely on the basis of failure to comply with visitation or child support provisions, or on the basis of which parent is more likely to allow visitation or pay child support; (d) If domestic violence and abuse, as defined in KRS 403.720, is found by the court to exist, the extent to which the domestic violence and abuse has affected the child and the child's relationship to both parents. (5) (a) Except as provided in paragraph (b) of this subsection, any court-ordered modification of a child custody decree, based in whole or in part on: 1. The active duty of a parent or a de facto custodian as a regular member of the United States Armed Forces deployed outside the United States; or 2. Any federal active duty of a parent or a de facto custodian as a member of a state National Guard or a Reserve component; shall be temporary and shall revert back to the previous child custody decree at the end of the deployment outside the United States or the federal active duty, as appropriate. (b) A parent or de facto custodian identified in paragraph (a) of this subsection may consent to a modification of a child custody decree that continues past the end of the deployment outside the United States or the federal active duty, as appropriate. (6) Attorney fees and costs shall be assessed against a party seeking modification if the court finds that the modification action is vexatious and constitutes harassment.

Basically, what this says is that you have to be able to show since the time of the last modification of custody that there has been a substantial change in circumstances affecting the child's well-being and that it is in the best interest of the child to modify the agreement. Understandably, courts don't like to keep changing a child's home environment and setting unless they believe it is warranted. While your daughter's wishes may certainly be taken into consideration by the court, they are not binding on the judge. What matters is what the judge feels is in her best interest, and that's not necessarily what she wants.

And as noted --I bolded and underlined the section -while repeated violations of visitation provisions is a factor that a court will consider, it is but one factor, not the deciding factor whether to modify custody. If he is violating the agreement by not abiding by the visitation schedule, refusing to turn over contact information, or update you on your daughter's appointments and such, then your better remedy is to file a contempt motion against him and ask for sanctions from the court, such as to compel him to produce the information under threat of further court punishment, paying your attorney fees for having to bring the contempt motion, and make up visitation time. Obviously I don't know all the facts and circumstances in your family relationship, but my professional opinion is this is what is more likely for a judge to say and that based on these limited facts alone, a judge would not switch custody.

Please let me know if I can clarify anything or provide additional information.

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Customer reply replied 7 months ago
well that isn't good news seeing he is being very difficult. but if its the law I will have to hope he will soften. so basically he knows he can do what he wants and there isn't much I can do. thank you any way.
Well I’m not saying he can do what he wants - if he’s not abiding by your agreement, then he’s in violation of the court order and your remedy is to file a motion for contempt. I just don’t think you have enough to warrant a change in custody, but that doesn’t mean you cannot try. The lawyer you met with obviously was willing to take on the case.
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I realize this isn’t what you want to hear but understand I am telling you the law and telling you less than the truth would only be unfair to you. Please remember to leave a positive rating if you haven’t done so by clicking on the stars at the top of the page so I am credited by the site for my time and assistance. Thank you!
RobertJDFL
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Customer reply replied 7 months ago
ok ill file a motion of contempt I know you can only tell me what the law says. thank you.

You're very welcome! Once again, please remember to click on the stars at the top of the page to leave a positive rating for me. Thank you.

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Customer reply replied 7 months ago
do I need file the motion of contempt in the county my daughter lives or in mine

File in the county where you child lives.

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Customer reply replied 7 months ago
thank you

Of course, anytime!

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