Family Law

Change of Circumstances in Child Custody

By Lina Guillen, Attorney
What do you need to show to change a custody order?

Temporary Custody

Divorcing parents must decide what child custody arrangement will serve their child’s best interests. Often, parents will come up with a temporary custody plan or ask a court for help setting temporary custody orders. These are often meant to keep the status quo in place until the remainder of the divorce is resolved.

During the early stages of a divorce, it’s common for one parent to move out to a temporary residence, so that the other parent—usually the primary parent who handles most of the child care—can stay in the family home while the divorce is pending. This allows the children some stability during a difficult transition and while other issues are resolved, such as:

  • Will one parent keep the family home and buy the other out?
  • Will the parents sell the home and each move to new places?
  • Will the parents try a nesting custody arrangement?
  • Is either parent planning a major relocation?
  • Is either parent planning to remarry or move in with a new partner?
  • Who will pay child and/or spousal support?
  • Will either parent need to get a new job?
  • Will one parent have substantially more custody time (or sole custody)?

Once these issues are worked out, the parents can agree on a long-term custody solution—often called “permanent custody.” If the parents can’t agree, a court will have to decide for them and issue a permanent custody order. It’s important to note that in some cases, when temporary custody arrangements appear to be working well for the children, a judge may hesitate to make any big changes in the permanent order.

Permanent Custody

If they can’t agree on a long-term custody plan, parents will have to go to court. Once a decision is made—either by the parents or a judge—a court will issue a permanent custody order that spells out:

  • How legal custody is shared (joint or solely to one parent)
  • How physical custody is shared (or if it’s awarded solely to one parent)
  • What days and times the children will visit with the noncustodial parent
  • How holidays and vacations will be divided each year
  • How extracurricular activities will be paid for, and
  • Who will pay for transportation costs related to visitation.

Although it’s called a “permanent custody order,” there are several reasons why these custody arrangements seldom last forever. First, they are only meant to cover the time until the child turns 18 or is legally emancipated. So if you have older kids, these permanent orders won’t last very long.

Second, custody arrangements that work well for a 2-year old will not necessary be appropriate once that child enters kindergarten, middle school, or high school. Over time, parents may need to adjust custody plans in order to accommodate new sleep routines, school schedules, and extracurricular activities.

And last, most families—divorced or not—will experience at least one major life change over time. With divorced families, a change in circumstances may provide a basis to alter custody. When something comes up which one parent believes requires a change to the current arrangements, that parent can file a motion to modify custody.

Modifying Custody Based on a Change of Circumstance

Major life changes can throw a dent in custody arrangements, visitation days, and daily routines. Parents can agree to change custody and work out the details on their own. If they can’t agree, then the parent who wants to modify custody will have to go to court and ask a judge to grant the request.

The specific requirements vary between states, but generally, a parent who wants to change custody will have to show there’s been a “substantial or material change in circumstances” that warrants a new custody plan and that the new plan is in the child’s best interests.

Common examples of a substantial change in circumstances include:

  • one parent has a new job which requires extensive travel and will have a major impact on time available for the kids
  • one parent has to relocate somewhere far away from the child’s current residence
  • the child refuses to see the other parent and is old enough to provide the court with an opinion on custodial preference
  • one parent has become abusive, neglectful, addicted to drugs or alcohol, or there is some other reason why that parent is unfit to care for the child.

After the court receives the request for a modification, it will set a hearing date where both parents (or their attorneys) appear and present their evidence, witnesses, and arguments. If the judge agrees that a substantial change in circumstance warrants a change to custody and that the change in custody would be in the child’s best interests, the court may grant the request and modify the custody plan accordingly.

If you have questions about a change in circumstances that is affecting custody and whether you have grounds to file a motion, you should speak to a local family law attorney for advice.

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