When parents separate, divorce, or share a child together but are not in a relationship, they oftentimes have a child custody or child visitation order put in place. A court will review the case and decide what is in the best interest of the child. If the parents agree, then they may also be able to resolve a custody or visitation order in mediation.
Sometimes, one parent may wish to modify an existing child custody or visitation order. Some reasons you may want to modify a child custody or visitation order include, but are not limited to:
- One parent moving out of state;
- You think your child is in danger;
- Failure to follow the current court order; and
- Death or incarceration of the custodial parent.
Essentially, child custody or visitation orders can be modified if the previous order no longer works and cannot be carried out by the parties involved. Courts will allow modification of a child custody or visitation order in certain situations. For example, you cannot modify your child visitation order because your current partner wants you to spend time with them instead.
Once you have a valid reason, then you will need to file a petition and follow all of the requirements imposed by your jurisdiction.
When Can You Modify a Child Custody or Visitation Order?
When it comes to custody issues, the best interests of the child will always be first and foremost. If an arrangement has been working and the child is doing well, then the court will be hesitant to modify the order. As such, you will need proper grounds to modify an existing child custody or visitation order.
Proper grounds for modification generally include just cause or a change in circumstances. For example, a judge may agree to modify an order if the parent who has visitation skipped out on most of the scheduled visits with their child. This could indicate that it is not in the best interest of the child to keep giving an absent parent visitation rights. As such, the judge may decide to put the parent on a trial period or take the visits away completely.
Another reason that would make a judge modify an order would be an instance of child abuse. This is extremely serious and will be considered an immediate danger to the child’s well-being.
An additional example could be the desire of a parent to be more involved in the child’s life, however, this may be harder if the current arrangement was working well and providing the child with a positive environment.
Say a parent only had visitation or custody one time a week because they had a substance abuse problem. If they went to rehab and turned their life around, then a judge may deem this a changed circumstance that warrants increased custody.
One instance where a judge will not allow modification is when the child wants the order changed. However, the court may seek the child’s input during a hearing and weigh it with the other evidence to determine what is in the best interest of the child. The child’s age is also a factor as to how strongly the court will consider their wishes.
How Do You Petition to Modify a Child Custody or Visitation Order?
In order to modify a child custody or visitation order, you will need to file a petition with the appropriate court. Keep in mind that some courts refer to this as a motion instead of a petition. The petition will generally need to include the following information:
- Both parents’ names and addresses;
- A copy of the existing custody or visitation order;
- The reason you are seeking modification; and
- Proposed modification terms.
The petition will need to be signed by you and filed with the clerk of the court where your case is pending. There may be a fee associated with the filing, the amount of which will vary. Some courts also have form petitions or may require certain forms to be attached to the petition, so you need to become aware of these requirements.
A copy of the petition will need to be served upon the other parent or sent to their lawyer, if they have one. If you have a lawyer, then they can prepare the petition and file it for you to ensure it is done correctly and that all required documents are included with the petition.
The court will then issue a hearing date on the petition in most cases prior to reaching their decision. You will be able to present evidence and argue your side. The other parent will also get a chance to respond in writing and present their arguments at the hearing.
After this, the judge will weigh the evidence to determine if the modification is in the best interests of your child. If there is an allegation of child abuse, then swifter action and temporary orders removing the child from the household may be put in place to protect the child until the petition is heard and resolved.
Do I Need a Lawyer to Modify a Child Custody or Visitation Order?
While you can represent yourself in family court proceedings, including modification of a child custody or visitation order, hiring a local child custody lawyer is very beneficial.
A lawyer can guide you through the process and make sure you prepare the petition according to your jurisdiction’s rules. A lawyer can also help argue your position at any hearings.