Child Custody Modification

Child custody is an ongoing issue for parents after divorce. Many parents with child custody orders experience a change in circumstances and need to modify the child custody order. However, before the child custody order can be modified there must be a substantial change in circumstances and the party must request a court hearing.

Substantial Change In Circumstances

The kind of change in the facts and circumstances must be substantial and affect the child’s welfare. The child will not be removed from the prior custody of one parent and given to the other unless the parent can prove that there is a substantial change in circumstances.

The parent asking for a change in custody must prove that there are substantially changed circumstances that merit the change in custody. The rule requiring the showing of substantially changed circumstances applies to both changes in physical custody and legal custody.

Procedure in Child Custody Modification

If the other parent does not agree to the change in the current arrangement, the parent who wants to change the agreement must request a court hearing. The requesting parent or their custody attorney must prepare a new parenting plan, including details such as scheduled visits and holidays.

The court relies heavily on written paperwork when it decides on the request of the parent. Verbal testimony is often limited during hearings, and child testimony expressing a custody preference is not always permitted for children under 14. It is important to find a lawyer who has experience in custody to ensure that all the necessary paperwork is filed. For example, the new parenting plan prepared by the requesting parent must be attached if the parent wants it to be part of the court order.

Requirement of Prior Determination

The rule regarding changed circumstances applies only when there has already been a final judicial determination of custody. A final judicial determination is an order or decision by the court that is no longer subject to appeal or review by a higher court. The rule on changed circumstances does not apply when there is no final judicial determination set by the court.

A custody order that the parties stipulate can also be considered a final judicial determination under the circumstances. The changed circumstances rule will also apply in this case, and the parent requesting the change in custody must prove why it is necessary to change the current custody order.

The following are not considered final judicial determinations of custody:

• Orders including detailed visitation schedules but not providing for their further hearings, which clearly did not state that they were final judgments on custody and that the parties’ conduct following entry of orders strongly suggests that they did not intend the orders to be final.
• A judgment reciting that the parties would meet with a therapist or counselor to resolve custody and visitation issues and, if unsuccessful, would make an appointment with the Conciliation Court before filing a request for a hearing.

When is the rule not applied?

The changed circumstances rule also does not apply to a temporary custody arrangement that has been implemented under a pendente lite stipulation, request for order, order to show cause or pre-trial order. In such cases, even if circumstances have changed, the court can award custody to the non-custodial parent if it determines that it is in the child’s best interest.

A mere change in the parenting schedule that affects each parent’s time with the child does not need a court order. The parents do not need to prove in this case that there is a change in circumstances. The rule does not apply to a modification of the time-sharing schedule under a joint physical custody order. Modifying a co-parenting residential arrangement without modifying the order for joint physical custody is not considered a change in custody.