The best way to phrase this question is as follows, “How do I get an order awarding custody of our child to me, if I assert as the basis for my petition that the custodial parent is not keeping the child safe?”
As an attorney who gets ask this question frequently, the first things I tell people who ask me such a question are:
1. Is the noncustodial parent in fact not adequately protecting the child in keeping the child safe, as you assert? Could reasonable minds differ as to whether the custodial parent truly is not taking at least a minimal action to keep the child adequately safe? Or are the bases for your assertion—even if you could prove as a matter of fact the bases for your assertion—not reasonable?
a. For example parents have come to me asking if they could seek a change of custody or visitation (also known as parent-time) because:
i. the other parent started drinking alcoholic beverages (when previously, before the divorce, neither parent drank alcohol as a matter of religious beliefs or health consciousness). Not that the parent has become a drunk, but just drinks. That’s not a winning argument for a change of custody. That’s not enough to prove the child is in danger;
ii. the other parent is dating or living with a convicted felon. As long as that convicted felon is behaving himself/herself, conducting himself/herself in compliance with law, and not barred from being around minor children as a condition of his/her parole or release from prison, another parent dating or living with a convicted felon is almost certainly not going to be a sufficient basis for seeking a change of custody on the grounds that the child is in danger/not safe.
- Granted, if the convicted felon is a multiple murderer or a snitch shoes being hunted down by the mob, that may be enough for a court to determine the risks are too great, but parents who come to me with the felon concern are usually faced with a situation where the new boyfriend or girlfriend was convicted of fraud, or the new boyfriend’s/girlfriend’s felony conviction took place so long ago that nobody believes the new boyfriend/girlfriend is the same person he/she was back then;
iii. parents have come to me asking if they could seek a change of custody or parent-time because the other parent lives in a dangerous part of town and/or in messy or small apartment. No sale. Unless you can prove that the conditions are so dangerous that it’s just a matter of time until a child is harmed, or at least show that the risks or dangers to which the child is exposed as a result of where that parent lives, the court’s just not going to make a change on that basis;
iv. What about a parent who has a dog as a pet, and your child is allergic to dogs? That would depend upon how bad the allergy is. I found out in my late 40s that I am allergic to cats. That was news to me. We had a cat in the house I grew up in. I had friends whose cats I played with as a child. I never noticed and still never notice any harm come to me from being around cats or in houses where there are cats. So if I were a child and my parents were divorced and Dad was the primary custodial parent and he owned a cat or two, would Mom be able to get a change of custody because I technically tested allergic to cats? I doubt it;
v. What about a parent who doesn’t have the children bathe as often as you would like, or who doesn’t have them brush their teeth at his/her house? Yeeeaaaah, probably not enough to get a change of custody. Maybe, if your judge is really into hygiene, but odds are against you.
2. Even if it’s true that the custodial parent is a danger to the child or exposes the child to unreasonably dangerous situations, if you can’t amass enough evidence to prove it to the satisfaction of the judge, then mere truth doesn’t matter. Many times I’ve encountered cases where the parent and I knew the truth, but didn’t have enough to prove it. This happens a lot in situations of substance abuse and physical abuse that can be explained away as being caused by something other than the abusive parent.
Bottom line: unless you have a legally sufficient argument that the child is suffering serious harm or that the child is in real danger of serious harm AND have sufficient evidence to prove it, you will likely lose a petition to modify custody on the grounds the custodial parent is not keeping the child adequately safe.
Utah Family Law, LC | divorceutah.com | 801-466-9277