In matters of child custody, although a judgment may be categorized as final, it is never truly final. The best interest of the child or children as well as their needs will evolve over time as they get older. There are, however, circumstances that may arise that warrant a change in the child custody agreement.
A child custody agreement provides guidelines and specific information regarding child custody between the parents of that child. The agreement must be reviewed and approved by a judge in order for it to be legally enforceable.
In most cases, custody after divorce or separation issues are resolved during the separation or divorce proceedings. In order for an agreement to be modified, both parents must agree to the modifications. When the parents come to a new agreement, the proposed changes must be approved by the judge, much like when the order was first approved.
If the parents are unable to reach a new agreement, the court may have to intervene. In these cases, one parent may file a petition with the court requesting to modify the custody order. The parent seeking modification will then need to serve the other parent with a copy of the petition to modify.
In some jurisdictions, there is a waiting period that must pass before a modification is permitted — unless, of course, there is evidence that the child is in imminent danger. In those cases, the court may make immediate changes to the existing order.
How Is Custody Determined in a Divorce?
The process for a court to determine the legal custody of a child after divorce is a complex process that requires an examination of many factors. These factors will be examined through the lens of the child’s best interest standard, discussed below.
Some common child custody factors examined may include:
- The relationship each parent has with the child;
- Each parent’s history of interactions with the child;
- Whether one parent is the primary caretaker of the child;
- The background of the child;
- The child’s adjustment to their home, school, and neighborhood;
- The child’s mental and physical health of the child,
- The mental and physical health of the parents;
- Whether the child has any specific health, medical, or psychological or emotional needs;
- The wishes of the parents, although not weighed as heavily, if both parents agree to a particular custody arrangement, the court will generally order that arrangement;
- The child’s wishes, especially if the parents cannot agree on a custody arrangement; or
- The preferences of the child, especially if they are above a certain age, which may vary by state.
How Do I Change My Child Custody Agreement?
As noted above, any changes to a child custody agreement must be approved by a judge in order to be considered legally enforceable. The court will be more likely to approve any changes if both parents agree on those changes and agree to modify the existing order.
It is important to note that when creating a child custody agreement, it is possible to include provisions regarding future revisions of the agreement. Family mediation may be an excellent option for divorced parents needing help with revising a child custody agreement.
In some states, to request a modification of an existing agreement, the requesting parent must file the petition with the court that first granted custody. However, this varies by state.
Some exceptions may include if a parent has moved to another part of the state or if there are circumstances that would make it difficult for the requesting parent to file in the original court. In these cases, the court will generally allow the requesting parent to file in the county in which they currently reside.
If the parents are unable to agree on a revision, they will attend a custody hearing after filing their respective pleadings. Both parents will present their cases to the judge regarding why or why not a modification should be granted.
Any changes to an agreement requiring a modification must be substantial changes in circumstance, such as:
- One parent moving away;
- The child’s residence is no longer safe;
- The current order is not being followed and requires changes to be properly enforced; or
- Any other substantial change in circumstances.
Documentation of substantial changes in circumstances will assist in a request for modification. This may include evidence of problematic behavior, situations, or statements that support the requesting parent’s claim. Evidence may come from witnesses or the child if they are old enough.
Can I Modify My Custody Arrangement Without Going to Court?
Yes, it is possible to modify a child custody agreement without going to court. However, in general, these agreements must be approved by a judge in order to be enforceable under state law. Although a judge may have to approve an agreement, there are ways to come to an agreement outside the courtroom.
Mediation is a great option for modification of custody agreements. Meditations are conducted by a neutral third party, known as a mediator, who facilitates communication between the parties in order to reach an agreement. This is a quicker, more cost effective option than going to court to argue for a modification.
What Influences the Decision to Approve a Custody Modification?
A court will weigh decisions regarding child custody using the child’s best interest standard. Using this standard, the court will weigh a variety of factors and determine what best suits the child. The standard does give weight to the needs or wants of the parents.
Factors the court will weigh when determining the child’s best interest include:
- The child’s background including sex, age, and personal health characteristics;
- This is especially important in cases of children with special needs or disabilities who may be used to a certain home or accustomed to a parent who provides daily specialized care.
- If the child is at least 12-14 years old, many states will consider the child’s preferences as an important factor so long as the child demonstrates a certain level of maturity;
- However, a child’s preferences are not a substitute for other important factors.
- Environmental factors including the quality of education in each parent’s school district, the safety of each parent’s neighborhood, and the proximity to other extracurricular activities;
- Courts are more inclined to leave in place already established patterns for a child absent an important reason to change a school or neighborhood.
- The physical and mental health of each parent;
- The ability of each parent to provide emotional and financial support to the child while the child is in their care;
- While parents with lesser income will not be prevented from having custody of their children due to their financial status, a court may decide the permanent residence is with the parent who is better able to maintain an appropriate home on a long-term basis.
- The stability of each parent’s lifestyle and work schedules;
- A parent who has a job that requires substantial overnight travel may have difficulty securing residential custody unless changes in their work schedule are made.
- The existence or level of attachment to siblings or other important family members in the home; or
- Courts often encourage children to maintain their relationships with other family members such as half-siblings and grandparents.
- Each parent’s commitment to facilitating an healthy relationship between the child and the non-custodial parent;
- A parent who cooperates with the other parent and handles disputes respectfully is more likely to receive custody or decision making authority than a parent who speaks ill of the other parent to the child and routinely picks fights in front of the child.
As noted above, in order for the court to modify an existing agreement, it is generally required that one parent demonstrate a substantial change in circumstances. The court will consider the best interest of the child for any modifications.
Do I Need an Attorney for a Post-Divorce Child Custody Modification?
Yes, it is essential to have an experienced child custody lawyer for a post-divorce child custody modification. A child custody order is always drafted with the child’s best interest in mind. A violation of this order may result in serious consequences. If any changes are necessary, it is imperative they be requested as soon as possible.
An attorney, also known as a lawyer, can assist you with a modification request. A lawyer can review your local laws as well as your current agreement and determine what is required to modify your existing order. They can also recommend a mediator to facilitate an agreement. Lastly, a lawyer can assist you in gathering evidence, filing your petition in court, if necessary, and represent you during any court proceedings.