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.

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.

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.

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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.

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Child Custody: Criteria for a Custodial Parent
 

References

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