Modification of a Custody Order: Part 2 – Change of Circumstances

Today we begin our exploration of the modification of a custody order.  The primary consideration in any custody matter is the best interest of the child.  With that in mind, a court will order the modification of a custody order only upon a showing of sufficient change in circumstances reflecting a real need for modification of the existing order to insure the continued best interest of the child.  Many situation or facts can provide a change of circumstances sufficient to warrant a modification of an existing custody order.

The parties’ agreement to alter their parenting schedule is a change of circumstances sufficient to warrant a modification of an existing custody order.  So, if the parties submit a proposed order modifying an existing order on consent, a court most likely will go along with such and modify the existing order.  However, before a court will order such a modification, a court will consider if the proposed modification in is the best interest of the child.

Where parties cannot agree regarding custody, the parties’ alteration of their parenting schedule still is a change of circumstances sufficient to warrant a modification of an existing custody order.  For example, in one case the court found that the parties effectively abandoned the parenting schedule and crafted various schedules as their circumstances changed.  Based upon this change of circumstances, the court ordered a further modification of the parenting schedule.

Another change of circumstances that is sufficient for a modification of a custody order is a change in a party’s work schedule.  This may at the least warrant a change in the parenting schedule to reflect the parents’ work schedules.  This also may be in some cases a basis to change the custodial parent if one parent is no longer able to provide adequate care or one parent now is much better positioned to care for their child because of their new work schedule.

A parent getting married or having new children in their household also are changes of circumstances that may be a sufficient basis for a modification of a custody order.  This may at the least warrant a change in the parenting schedule to reflect a parent’s obligations with a new child or the addition of a step parent to provide care for the child.  This also may in some cases be a basis to change the custodial parent in conjunction with other circumstances.

There are many other situations that can present change of circumstances that may be a sufficient basis for a modification of a custody order.  These include, but are not limited to, domestic violence in the household involving the children or witnessed by the children, false allegations made by one parent against the other parent, a parent alienating a child from the other parent, as well as a parent’s inability to control a child.

It is important to keep in mind that not every change in circumstances will require a modification of a custody order.  A judge must be convinced that the change in circumstances demonstrates a real need for a modification in order to insure the continued best interest of the child.  With this legal standard, there are many changes in circumstances that may be significant, but do not justify changing or modifying custody.  These issues will be discussed in future posts.

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