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I often get clients back in my office after the divorce and child custody have been “settled”.  As time goes on, some things don’t always go as planned. Parents can be find themselves in the predicament of not being able to communicate, cooperate and made shared decisions concerning their children’s welfare. This can be especially problematic when parents share joint legal custody. Remember, joint legal custody means that both parents make decisions on the children’s behalf. To refresh your memory on the various types of custody, check out our past blog.  Changing child custody can prove to be difficult and that is why it is important that you be able to document the change or changes in circumstances showing they are detrimental to the children.

A couple of factors that can prove there is a change of circumstance and may require a custody modification are health issues and employment.  A judge may consider the health of the custodial parent if the children’s best interests are not being met. However, just because the custodial parent is in ill health or disabled, does not necessarily mean the custody agreement will be changed. This is only one factor the judge will consider. If the unhealthy or disabled parent can meet the children’s needs and provide a good, stable home environment for the children, then most likely the custody agreement will not be changed. In order to prove the health issue affects the children’s well-being, you must prove that your ex is truly unable to care for the child and not able to respond accordingly in case of an emergency. A mental illness, on the other hand, that makes it next to impossible for the parent to care for the children, becomes a major factor. However, if the mental illness can be successfully treated by drugs or other methods and no danger or difficulty in caring for the children, the mental illness may not be relevant. When a parent’s mental well-being is in question, the judge does not take it lightly, especially if he or she feels the safety or well-being of a child is at risk. For example, if there is a documented history of violent behavior associated with the mental disorder, the court may find that a custody modification is necessary for the best interest of the children.

Unemployment can sometimes become a custodial factor if the children’s needs are not being met. However, if the judge knows one parent is working and able to financial support the children, the one without the job can be considered the caretaker of the child.

This brings me to another point---what constitutes an unfit parent? Arkansas law does not have a specific definition, but an unfit parent is one who has failed to have regular contact with his or her children for a prolonged time without a justifiable cause or has failed to contribute to the children’s support for a prolonged time without a justifiable cause. Additionally, if the parent is abusive, then he or she is considered to be unfit.

If child custody issues turn ugly and you are worried the other parent is going to take the children and hide, then you will need to file a restraining order that prevents the children from leaving the state. If your ex tries to take the children out of the country without the other parent’s permission, you must act quickly and take additional steps to prevent this. If you believe your minor child may be taken out of the country without your permission, you must contact the US State Department’s Office of Children’s Issues and the appropriate law enforcement officials. Information about the issuance of a passport to a minor is readily available to either parent regardless of custody rights as long as the requesting parent’s rights have not been terminated. In order for the Department of State’s Passport Name Check Clearance System to notify the objecting parent when a US passport application is made, his or her name must be in the file and a copy of a document such as a birth certificate or court order of guardianship that shows the relationship between the child and the objecting parent. For more helpful links and instructions on how to obtain assistance, go to the US Department of State’s website on International Child Abduction or call them at 202.736.9090.

Kevin Hickey Law Partners can help you with all your child custody needs from initial child custody settlement, modification and beyond. It is important to remember, if you believe your children are in imminent danger you should first contact the appropriate authorities and then contact my office.

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In the River Valley:
502 Garrison Avenue
Fort Smith, AR 72901
Phone: (479) 434-2414
Fax: (479) 434-2415

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In Northwest Arkansas:
1750 S. Osage Springs Drive, Suite 210
Rogers, AR 72758
Phone: (479) 802-6560
Fax: (479) 802-6561

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