How Far Must My Child Slide Before I File for Custody?

We recently had lunch with a few of our associates, and as usual we talked shop while we hit up the coffee and sandwiches. One of the interesting questions that came up: “A client of mine recently came to me with a written letter from his son’s teacher saying that his son had started failing multiple classes and was caught smoking weed while he ditched his gym class. He wanted to know if it was enough to file for custody of the child. What do you think?”

Well, here’s what I think. I think it sucks when good kids make bad decisions, and I think it’s terribly hard for a noncustodial parent to feel like their only option is to sue for custody. But I also think that there’s not nearly enough information in that story to be able to encourage the father to file for custody. Here’s why:

Kids can fall off the yellow brick road for any number of reasons, and there’s absolutely nothing to firmly link the mother’s behavior to the child’s behavior. It only takes one bad ‘friend’ to lead a good kid astray, and the influence from that friend will sink in long before either parent figures who it is or is able to get their child away from that person.

Looked at another way, it may be that the kid is reacting to bad circumstances between the mother and the father in the first place — turning to drugs because he feels unsupported and unloved at home, because Mom and Dad are spending more energy hating each other than loving him. If that’s the case, a protracted custody battle is exactly the opposite of what the child needs.

If you want to file for a change to your custody agreement, you’re going to have to prove the to the court that either:

• A change of circumstances has rendered the custody agreement non-viable — this means that one parent’s economic, housing, or other physical, survival-relevant circumstances have changed dramatically enough that the other parent is now the more secure home for the child — or,
• Proper cause exists for moving the child — this means that the custodial parent has shown behavior that proves them less fit than the non-custodial parent. The story above could contain evidence of proper cause, but only if you can prove a link between the child’s behavior and something the mother is doing. Even then, not every behavior the mother could be engaging in is ‘proper cause’ — for example, if the kid is upset because he mother is considering remarriage, that’s not reason for a change of custody. It’s upsetting to the child, but it’s not anything harmful, reckless, or neglectful.

Now, that said, I do believe that this concerned father did exactly the right thing — he went to a family law attorney and asked if his concerns were grounds for action. Presumably, when he was told that they weren’t, he went home and either decided to keep searching for more evidence and building a case, or decided to let it go. Both are legitimate choices — the important part is to involve and listen to your family attorney before you charge off and start filing papers at the courthouse.

Don’t know if your situation is far enough beyond this one to warrant actually getting in front of a judge? Call Gucciardo Family Law today at 248-723-5190 — we’ll be happy to tell you!