Can This Custody Agreement Be Changed?

by Anonymous from Miami-Dade County, Florida

My neighbor's husband was awarded custody of their son in a Miami court, and as a French resident was told he could take the child back to France and would have to pay to return the child to Florida for every holiday over 5 days.

The mother was making it difficult for the father to see the child which is why the judge awarded the father custody.

They then decided to try and work it out for the child's sake and the mother, boy and father bought furniture and moved into an apartment.

The mother and boy remained in Florida whilst the father went to work out of the country and would return for vacations, since he was not a legal resident.

He has since gotten a green card and shortly after he received this, the mother decided the relationship had broken down so much that they were only staying together for the child and moved out, leaving the boy with the father as per the custody agreement.

A month later the father decides he wants to go and work in Europe for the summer and asks the mother to move back in and look after the child whilst he is away, which she does. After 3 months he returns and takes the child to France as per an agreement that the child would go on holiday to visit his paternal grandmother for 3 weeks.

The father then kept the child there for the remaining 2 months of the summer vacation and has had numerous medical tests done which show the child needs his adenoids out and some OT for muscle control in his hand for writing.

The child has been living primarily with the paternal grandmother whilst the father is working elsewhere, has now been enrolled in school in France and to all intents and purposes is staying there with his grandmother.

In the meantime the mother is struggling to maintain contact with the child who is 7. The grandmother does not want her calling the home telephone and so the boy has his own cell phone. However despite calling every day, she only manages to speak to him 3/4 times a week and then on speaker phone with the grandmother listening in to the conversation.

In October there is a 1 week holiday coming up in France which he is due to return to his mother, but the father is wanting to schedule the surgery during that period and so doesn't want him to return to Florida. He says the mother must fly to France and he will pay for the ticket and she can stay with the grandmother.

The mother has just started a new job and is studying and with the breakdown in relations between her and the boys father, things are not easy between her and the grandmother and she doesn't see it being favorable for her to stay with the grandmother, when she makes it difficult for her to even talk to her son on the phone. Whilst she appreciates that he needs the surgery, why is it being delayed until the vacation time.

He got an excellent school report from his French/American school last year, and so although his would be missing a week of school due to the recovery period of the surgery, the OT would be visiting him at home and he would be able to do the course work at home as well. The parents were never married.

Can this custody agreement be changed due to the following:

- Father now has legal US residence and so no reason for residing in France. Previously he had only lived in France for 6 months in the past 8 years and so was not returning to a job there.

-The boy is not living full time with the father but rather his grandmother because the father works elsewhere.

-The father has a history of continually moving around and not only of changing jobs, but also towns or countries. In the past 8 years the maximum time he has lived in any one place or held down a job is 12 months.

-The mother would be happy with joint custody if possible with a sharing of the medical costs.

-The boy has often mentioned to myself that he would prefer to live with his mother because she takes care of him and cooks for him. He does not know that his situation in France is permanent. He thinks after his surgery he will return to the US.

- The father has already broken the custody agreement by not returning to France 2 years ago when he got custody of the child, and now when he failed to return the child to the US during what should have been the mothers visitation time and now for scheduling the surgery during what would be the mothers visitation time.

-The boy is a US citizen and mother a US resident as is the father.

Answer to Florida Child Custody Question

Dear Anonymous,

The basis for a modification of child custody or time-sharing schedule is a change in circumstances. The changed circumstances can be relative to any of the parties. At this point, it is beyond me to say who has jurisdiction over this matter -- France or U.S.

Have a look at Florida's new Supreme Court approved form 12-950a, Agreement for Relocation of Minor Children and read the instructions to see if it is appropriate for your situation. You might also want to consider a Florida Long Distance Parenting Plan.

Notice: We provide these answers to the general public and our website visitors as a means to further their online legal research. These answers are merely suggestions and should not be regarded as legal advice.

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