Assume you represent Donna. Articulate an argument supporting a change of custody

Module 4 Discussion

A. Initial Post

James and Donna were the parents of two daughters, Emily, presently age 14, and Sarah, presently age 10.  Four years ago, James and Donna separated after 12 years of marriage.   Emily was 10 and Sara was 6 when the parties separated. At separation, the James and the parties’ two daughters remained in the marital home, while Donna  lived nearby and maintained regular visitation with the children. A year later, Donna  moved to Louisville, Kentucky.  

Both parties sought to obtain a divorce.James filed his complaint for an absolute divorce first, in the Circuit Court for Montgomery County, alleging separation for more than an year. Donna countered by filing her complaint for divorce on the grounds of voluntary separation in excess of one year. Both James and Donna asked for custody of the two children, child support, and attorney’s fees. The custody and visitation issues were resolved by the parties when they entered into, and placed on the record, a written agreement, “intended to resolve all issues between the parties as to the custody of their children, but to leave to the court decision on the issue of child support and attorney’s fees.”  In addition to maintaining the status quo with respect to the James being the children’s custodian-James had sole physical custody of both minor children. The agreement provided for joint legal custody. The agreement also contained detailed and comprehensive provisions concerning the Donna’s visitation with the children.  

James and the girls have continued to live in Maryland. The girls stay with Donna in Kentucky during their summer vacations.   The girls enjoy both parents.  Both girls are doing well in school and their extra curricular activities. 

Donna has petitioned the court to change custody of Emily and Sarah so that their primary residence is with Donna in Kentucky.  Donna is asserting that things have changed as the girls have begun to reach puberty.  The girls, Emily in particular, are more emotionally connected to their mother and that they need a female hand.  

In a deposition, an expert has testified as follows: 

“Q: In comparison, mother was much warmer, I think you testified to?

“A: In [Emily’s] perception, yes.

“Q: Okay.

“A: Now, again, that may be of that mother/daughter attachment thing, too. I mean, I did not find Mr. Giffin emotionally detached.

* * * * * *

“Q: And that is because [Emily] perceives him as being more emotionally aloof, to use those same words?

“A: I would not characterize it that way. I could not tell you if [Emily] is more comfortable with the mom. That may be explainable just in terms of that specialized relationship she has. You know, I mean, If I can look at my own kids, when my kids were adolescents, they were much more comfortable going to my wife. There is a developmental thing there and it’s not really necessarily a positive or a negative characterization against or on behalf of either parenting figure.

“Q: But the literature clearly recognizes the significance of that developmental factor that you were just talking about-

“A: Oh, yes.

“Q: -and the identification with the same sex parent is pretty common with someone this age; correct?

“A: And again, as I have already testified, it is something that ebbs and flows, yes.”

Emily has also expressed that she is more able to communicate with her mother than her father.

The evidence shows James is a caring and loving parent. Donna does not even contend that James is not a good dad.

Assume you represent Donna. Articulate an argument supporting a change of custody.  Be sure that your argument is supported by the law related to custody and changes of custody and analysis of the facts of this case. 

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