Modifying an Existing Child Custody or Visitation Order
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How Do I Modify an Existing Child Custody or Visitation Order?
Child custody and visitation orders can be changed and modified at any time before the child reaches the age of majority whenever the court believes that modification is necessary, proper, and in the best interest of the child. There are two major types of child custody that are subject to modification: legal and physical.
- Legal Custody: The right and responsibility to make decisions regarding the rearing of the child, including medical care, education, and religious instruction.
- Physical Custody: The right to have the child physically living with them. Physical custody can be either sole or joint.
What Is a Child Visitation Order?
If sole physical custody is granted to one parent, the other parent, also known as the non-custodial parent, is usually entitled to reasonable visitation rights. These rights give the parent not living with the child the opportunity to spend time with the child. The type, either supervised or unsupervised, and frequency of the visitation order can be determined by either the court or the parents themselves.
Can I Modify Child Custody and Visitation Orders?
Yes, the allocation of parental rights can be modified if the non-custodial parent's circumstances significantly change. There are two ways in which this can happen:
- The Court has continuing power to modify custody orders at any point in time, and
- The Parents can both consent to modification at any time.
Before you can file your petition to modify an existing child custody or visitation order, you must have basis for the modification. If the court determines that you filed the petition to modify the petition without merit, the court will dismiss the petition and may order you to pay the other parent’s attorney fees. Once your basis for the modification is identified, you will need to file a motion or petition to modify the existing child support or visitation order in place. Keep in mind that the court does not want to disrupt the child’s current living arrangements without cause and there has to be a strong case for the modification.
Under What Circumstances Will a Court Modify a Child Custody or Visitation Order?
The court's primary concern when dealing with children is doing what is in the children's best interest, and a stable environment is always in the child's best interest. If a state only uses the best interest test, then the court can modify custody and visitation based merely on the child’s best interests. Under a best interest test, the judge does not need a change in circumstances to justify changing child custody.
However, stability is a common theme throughout. As a result, many states use a "changed circumstances" analysis instead of a best interest determination. If a judge uses a "changed circumstances" test, the judge assumes that the prior custody decision was correct. As a result, the judge will only modify custody if there is a continuing and substantial change that demands a change in custody.
Changed circumstances that typically effect a court's decision in whether to modify a custody or visitation order include:
- The importance of rearing a child in a "traditional" family environment
- A substantial increase in the child's age
- A dramatic change to one of parent's income level
- One parent relocating to another state
- A showing that the current living arrangement puts the child at risk of physical or emotional harm
- The custodial parent refusing visitation by the non-custodial parent
What If My Child Custody or Visitation Order Was Violated?
There are many instances where an existing custody order is violated, which can prompt a custody order modification. Parents usually violate a visitation order by keeping a child for too long or failing to pick up a child at the right time. You have many options to use if your court order is being violated. Here are a few options:
- Call the Police: Call the police if you are unable to resolve the issues on your own. Depending on the circumstance, they may be able to intervene on your behalf, especially if it appears that the other parent has kidnapped the child.
- Seek Legal Assistance: Alert your attorney about the violations. Your attorney can send a letter notifying the other parent about legal penalties for not obeying the court order or petition the court for enforcement on your behalf.
- File a Motion with the Court: You can file a motion for contempt of court if the other parent continues to violate the court order. You can also request attorney’s fees and other associated costs with this motion.
Do I Need an Attorney?
If you are looking to modify child custody or visitation arrangements, it is generally wise to consult with a family lawyer. A lawyer will be familiar with the complicated family law court system and can work to protect your relationship with the child.
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Last Modified: 09-11-2015 12:16 PM PDT
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