What do I need to think about if I want to change custody of my children?

In custody cases it is not unusual for a parent to agree to the entry of a custody order they’re not all that happy with because they think that it will be simple enough to change later on.   This isn’t necessarily so.

To change custody so that a new court order is issued, the parent that wants to change it must show two things.  The first is that there has been a significant change in circumstances since the last custody order was entered.  The court can be fairly strict as to what amounts to a significant change in circumstances and what doesn’t.  For instance, a change of circumstances the court will consider does not include situations where a parent has simply changed his/her mind and does not like the current custody situation anymore; situations where the child simply says he/she wants to live with that parent; or situations where the parties previously agreed between themselves that custody would somehow change later on.  Some examples of changes in circumstances the court will pay attention to are things like one parent moving out of the state or community; one parent having developed legal problems or substance abuse issues that are bad enough to interfere with his/her parenting responsibilities; or one parent being with a partner who abuses substances or abuses the parent.

If the parent meets the first criteria, the second thing a parent wanting to change custody must establish is that the new custody plan they are offering to the court meets the child’s best interests.  Parents often assume that if they get over the first hurdle, that custody will in fact change.  That isn’t necessarily so.  Courts can and do find that even when it agrees that circumstances have changed enough for it to reconsider custody, the current custody order is still meeting the child’s best interests.  For instance, if the change in circumstance was substance abuse related, the court will look to see if that parent is in treatment or otherwise has the issue under control.  It is not unheard of for parents like these to defeat a motion to change custody if they “rehabilitate” themselves while the attempt to change custody is going on in the court.  These kinds of things can be very frustrating for the parent wanting to change custody.

In a nutshell, the court takes its orders regarding custody very seriously, and does not review requests for changes in them lightly if the parents do not agree.  Every parent preparing to enter into an agreement about custody that is going to be made an order of the court needs to think about the terms of the agreement they are making, whether they can really live with it, the effect it will have on the child and on them in the future; and whether the agreement will wear well practically and in other ways.  If not, you may want to think again about going ahead with having the court enter that order.

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