Can a Mother Overturn Residential Custody?

By Michael Butler

If a court has made a residential custody determination, in some circumstances a mother can get it overturned. The rules for doing so are not any different for mothers than they are for fathers. The process and standards for overturning a custody decision are different in every state. However, many states have similar statutes.

If a court has made a residential custody determination, in some circumstances a mother can get it overturned. The rules for doing so are not any different for mothers than they are for fathers. The process and standards for overturning a custody decision are different in every state. However, many states have similar statutes.

Appeal

Generally, you have the right to appeal the decisions of a lower court to a higher court. This includes custody orders. Appeals must be filed within a specific number of days from the date the lower court entered the order. You cannot appeal a custody order to which you agreed or consented. Appeals require following a very specific process precisely. They also consist almost entirely of making legal arguments that the judge made a mistake in interpreting or applying the law. Because of these reasons, you should hire an attorney if you are considering an appeal to a higher court.

Protect your loved ones. Start My Estate Plan

Motion to Modify

A mother can also file a motion to modify custody in the same court that made the original order. Every state has different standards concerning when a motion to modify custody can be considered by the court. In some states, there must be a substantial change in circumstances. In other states, a court will only allow custody orders to be modified if the child's safety is at risk should custody remain the same. If the state's threshold is reached, the court will make a new custody determination using the best interests of the child standard.

Substantial Change of Circumstances

In states that use the substantial change of circumstances threshold, the court will first decide if the threshold is met before hearing evidence about which parent should have custody. A change in circumstances means that something important has changed in relation to the child or parents since the time the court entered its original order. Some states have statutory factors the court will consider in making its determination, such as the age of the child and the existence of domestic violence.

Best Interests of the Child

The best interests of the child standard is used in all states in making custody decisions. It does not have a universal definition other than its plain meaning: The court will consider what is in the child's best interests and rule accordingly. Some states have specific factors that courts look at, including the child's wishes and connection with the community. Generally, however, a court is free to consider anything it deems relevant to a child's best interests, except for things that are unconstitutional, such as racial classification by the government. If a court determines that the best interests of the child are best served by changing residential custody to the mother, the court will do so. In the past, courts used the tender years doctrine as a presumption that mothers should have custody of young children. Most states have explicitly abolished this doctrine.

Protect your loved ones. Start My Estate Plan
Laws for Visitation for an Absent Father

References

Related articles

What Is a "Change in Circumstances" in a Custody Case?

Whether the case is concerning an original custody order or a custody modification, courts in every state are primarily concerned with what is in the best interests of the child. Even where the circumstances of a case have significantly changed, a court will only modify a custody order if it is in the best interests of the child. However, state law governs child custody issues and the particular factors up for consideration, time frame and process for requesting custody will vary by state.

How Old Must a Minor Be in Kentucky Before He Has a Say in Custody & Visitation?

Parents are often vocal about their preferences in a custody battle. However, a child also may have an opinion about which parent he would rather live with. In Kentucky, although the courts consider a child's choice in custody and visitation matters, the amount of weight given to the preference depends on his maturity level and the specific circumstances of the case.

Reconsideration of Divorce Decree

In some cases, you can ask the same court that issued your divorce decree to reconsider its opinion by filing a motion for reconsideration, which is often called a motion for relief from judgment or order. This motion is not appropriate if you merely disagree with the court's order. You should only use it when the court has made some kind of mistake.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Can You Appeal a Judge's Decision in Family Court?

Family court decisions resolve many important issues related to divorce, including child custody, property and support. ...

Child Custody Visitation Rights in Pennsylvania

Pennsylvania passed legislation that overhauled the state's existing child custody laws in 2011. The new laws addressed ...

How to Appeal a Child Custody Decision in Dallas, Texas

Child custody cases can be highly contentious and emotional, and an unfavorable ruling can be devastating. Texas law ...

Can You Lose Custody by Denying Visitation?

You can lose custody of your child by denying the other parent visitation. Denial of visitation can also result in a ...

Browse by category
Ready to Begin? GET STARTED