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Question: 1

I am divorced from my spouse and, now, my child(ren) want me to have custody. What can I do to get Custody.

Answer:

First, in order to be in a position to file a petition get a hearing in front of a Judge you must first have specific allegations in the Motion/Complaint that you file establishing that there exists a substantial change of circumstances or proper cause to warrant that the court consider a change of custody. Merely alleging a substantial change of circumstances or proper cause without a factual basis will not be sufficient to get a hearing in front of a Judge. Also, the mere fact that your child(ren) want(s) to change custody is not enough to survive this initial hurdle. This change must also be a change which occurred since the last Custody Order was entered. If you are bringing up issues which you were aware of but did not raise in determining the prior Custody order, the court will not consider your Motion/Complaint.

If you survive this initial inquiry, depending on the court where you are filing the Motion/Complaint, the matter will be referred to the Friend of the Court for an investigation/referee hearing to make a determination as to what and how many of the factors, listed in the State Statute for determining The Child's best interest favor you or the other parent. After the written recommendation or order is entered, either party may file specific objections to the recommendation and findings and, then, proceed to a hearing before the Judge. It is important to discuss with an attorney whether you have a basis for a change of custody before incurring the time and expense of filing proceedings in Court. Your attorney can review the factual basis needed to sustain a finding of substantial change of circumstances or proper cause as well as the factors considered in what is in the child's best interest as proscribed by State Statue.

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Question: 2

My child has passed away recently and I and my spouse have been trying to see our Grandchild(ren) but the other parent is refusing to let us see the Grandchild(ren). Can I get a court order to allow me visitation?

Answer:

First, in order to be in a position to even file a petition in court. If the parents of the child(ren) were married, then there must be an action pending in a court for divorce, separate maintenance or annulment involving the parents of the child(ren). If the parents were never married and do not reside in the same household, then paternity must have been established under the State Statute for paternity by either an acknowledgment of Paternity (a document other than a birth certificate), a court order of filiation or other order by a court of proper jurisdiction recognizing paternity or the child's parent, who is the child of the Grandparent, is deceased and that deceased parent provided regular and substantial child support and care for that child(ren).

If one or more of these criteria are met, then a complaint or motion for Grandparenting-Time can be filed along with an affidavit setting forth facts to prove by a preponderance of evidence that the custodial parent's denial of Grandparenting-time creates a substantial risk of harm to the mental, physical or emotional welfare of the child(ren).

There is more involved in preparing the matter for a hearing before the Judge. These are questions to be answered before a Grandparent can be in a position to even file an action to be heard before a Judge. This is why it is important to get legal counsel before taking any action in court on your own.

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