When there is a child involved but the parents are no longer together, the parties may enter into an agreement concerning who will have custody of the child. The agreement is formalized by court order.
The court will determine if the agreement reflects the best interest of the child, a standard that is common when dealing with family issues concerning minor children.
This standard considers a variety of factors including the age of the child, the physical and mental health of the parents and the child, the financial security of each parent, and whether there are siblings involved.
Visitation is determined at the time custody is finalized and is usually incorporated in the custody agreement or by separate court order. The custody agreement will address the type of custody, which will help determine the visitation rights of the non-custodial parent. A child visitation schedule will be outlined in the order to allow the non-custodial parent to spend time with the child.
The following are the types of custody allowed in most jurisdictions and will be addressed in the court order:
- Legal custody allows the parent(s) to make decisions about the child’s upbringing related to their schooling, healthcare, and religious practices.
- Physical custody gives the parent the right to have a child live with them.
- Sole custody allows one parent to have legal and physical control over the child. The non-custodial parent is typically granted visitation rights and the visits may be supervised or unsupervised.
- Joint custody gives both parents equal access to the child and requires that the parents agree to share decision-making responsibilities regarding the child. The child typically moves between the households of both parents.
Once the custody and visitation order(s) are in place, the parents must follow its terms or risk losing custody or access to the child. Further, a court can find you in contempt of a court order and order you to be incarcerated. Therefore, it is best to seek a modification of the court order instead of taking things into your own hands.
It is easiest to get a court order modified if there is agreement between the parents about doing just that. This is particularly important in jurisdictions that require a waiting period before a modification is permitted and there is no evidence the child is in imminent danger to warrant an immediate change to the court order.
In most cases, one parent will want to modify the court order while the other parent will want to keep it in place as is. In that case, the parent can file a petition with the family court to modify the order. The other parent must be served a copy of the motion.
Before making a decision, the court may order an evaluation by a social worker or mediation between the parties. You should consult with an attorney in your jurisdiction to understand what is required in your particular case.
When a court enters a court order, it has determined that the best interest of the child will be served by the court order as outlined and will be hesitant to change the order.
There are two limited circumstances in which a court will order a modification to a court order. The first is where the best interest of the child is no longer being met by the current arrangement and second is if there has been a significant or material change in circumstances since the order was entered.
Examples of a change in circumstance may include:
- One parent seeks to move long-distance for a job making the visitation schedule impractical;
- The non-requesting parent has created an unsafe home environment for the child;
- The child’s emotional and developmental needs have changed; or
- The non-requesting parent repeatedly ignores the visitation schedule;
Again, the court will evaluate all the facts to determine what is in the best interest of the child. If the reason you are requesting a modification is because of the non-compliance of the other parent, then it is important that you keep proper documentation.
For example, keep records of your efforts to get the non-complying parent’s cooperation or records showing you have contacted the police or notified child protective services.
A court order concerning custodial and visitation rights is legally binding. A violation of the court order can lead to significant consequences if you ignore it. As well, you want to make sure the court fully considers your interests before issuing a court order determining these important issues.
It is best to consult with a child custody attorney early in the process to understand and protect your rights. If you need help modifying a court order, an attorney can help you with that process also.