A young un-married father and mother both have shared custody of a young child. The child resides with the mother in another. The courts of the state with jurisdiction have order that the father have visitation per an agreed schedule. The mother consistently concocts baseless excuses and has twice been found in contempt for denying visitation by making herself and the child unavailable. The father has honored all legal obligations and has not missed child support. Now the mother is being evicted from her rented home for non payment, serious damage to the home where dogs and cats have been allowed too deficate and urinate on floors and carpets throughout the house, including the child's room (she's 5). The landlord is the mother's uncle who also informs the father that the child is constantly being dumped on her disabled wheel chair bound grandmother while the daughter goes out to party. The uncle has expressed concern for the child welfare to the father and says he will testify on the father's behalf. The mother continues to deny the father his to take his daughter for visitation as stipulated by court order. This latest visitation was to commence on 7/1/13. In order to see that his daughter is raised in a healthy environment, the father wishes to file for a change of custody. He has extensive documentation including affidavits from the mother's father, sister, and uncle each describing the unacceptable behavior of the mother, the filthy living conditions, and their support for the father to receive primary custody. Jurisdiction is in Massachusetts Family Courts. Does the father have a good case?
2 Answers from Attorneys
This sounds like a poorly written law school exam question.
There are a number of issues here. First, the question says that the child resides in another jurisdiction, but that Massachusetts has jurisdiction. Based on the question, it sounds as though Massachusetts does not have jurisdiction. Secondly, if the mother is not honoring a visitation order, then the mother is likely in contempt. Third, you mention that the parties have shared custody, but the details of shared legal, shared physical, and the specifics of any visitation order are critically important here.
Finally, the answer to your question whether the father has sufficient concern and possibly sufficient grounds for a custody modification is yes.
Unless Massachusetts retained jurisdiction or the mother lives in MA now, then MA may not have jurisdiction.
The father has a complaint for contempt for not honoring visitation, he may have a good case for asking for physical custody at least until the mother has obtained a proper home for the child. The father can also ask for child services to review the condition of the home et cetera.
A good case does not mean the father will win.