Modifying a Custody Order When There is a Change in Circumstances

  • By:Karpenski & Schmelkin

Once a family law judge has issued a child custody order, the order is legally binding—meaning both parents must abide by the terms of that order. However, life can change dramatically after a divorce. A custody arrangement rarely works for every stage in a child’s life, childrens’ needs evolve as they grow and parents’ circumstances change over time, all of which may require changes to a parenting plan. You can change a custody agreement, If you are able to come to an agreement with the other parent; however, if you and the other parent cannot agree, then you will have to go to court so a judge can decide.

Modifying a current custody and parenting time order requires a material change in circumstances if both parties don’t willingly agree to changes. The need to modify custody may be obvious, such as if one parent is no longer able to care for the children due to illness or incarceration. The change in circumstance can be positive, such as finding a better job or becoming more stable and wanting more parenting time. The court system is designed to protect what is in the best interests of the children, and a change in parenting time or custody may be warranted because of new circumstances.


Identifying the Material Change in Circumstances

A material change in circumstance is one that changes the child’s circumstances in a manner that is significant enough to warrant a custody or parenting time change. If you are not able to work out a new parenting time or custody schedule with the other party, the court may rule in your favor if you can show that the material change is significant enough. The ability of one parent to provide more financially for the children over the other parent is not reason enough to modify a custody or parenting time order.


When a Parent is No Longer Available

There are numerous reasons, both positive and negative, that can make a parent no longer available to parent the children as they are scheduled to. Getting a new job might mean that a work schedule changes, and a parent is no longer available to care for the children on his/her scheduled parenting schedule.  Alternatively, the other parent may no longer be available to parent the child because the other parent chooses not to exercise his or her scheduled parenting time. It can be very difficult on children who have strong relationships with both parents, when one parent suddenly can’t fulfill their parental obligations. 


The Wishes of the Children

There may come a time when the children want the custody and parenting time orders changed. The age and maturity of the children are taken into consideration when looking at their desire to change a custody order. Older teenagers have more say in custody orders, while young children often have opinions that can change from moment to moment. The opinion of children in regard to their custody arrangement is listened to and evaluated, but will not be the only deciding factor when trying to change an order.


Positive Changes in Your Life

If your parenting time with your children is limited because of previous instability, it’s important to consider your options if you have turned your life around. When you are able to meet the needs of your children and you have changed your life for the better, this may be a good time to consider modifying your current custody and parenting time order. Your children should see both parents as much as possible, and improving your life is a good reason to petition the court for more parenting time.


How to Modify a Custody Order

In order to get the guidance, you need to modify a custody order, it’s important to work with an attorney to file a complaint to modify the existing judgment. You will want to outline why you believe custody and/or parenting time should change, and how these changes will benefit the children. You will file the complaint, and the other parent must be served with the paperwork. You will obtain a hearing date, and get your chance to go in front of a judge to present your case during a hearing. Your attorney will talk to you about the proof you need in order to succeed at changing a current custody and parenting time schedule.

Modifying a custody order can take some time. If your concerns about the safety of your children with the other parent are motivating your request for modification, you have the right to seek an emergency order for custody. The court will determine if your claim is considered an emergency, but this is not something that should be filed unless you have valid concerns about the health and safety of your children when with the other parent. When you work with an attorney to modify the custody order, remember that the best interests of your children are most important.

Children need a strong relationship with both parents whenever possible. Try to mediate with the other side if possible, and work with an attorney to get the modification you seek if you are not able to work out an agreement without having to take the matter to trial.

Posted in: Child Custody