If you are interested in changing a custody Order, you should first know and understand the details of the current Court order concerning custody. You should read the Order and determine whether you have joint or sole custody – for both legal custody and physical custody. For more information on custody terminology please click here. You should also ascertain whether the custody order was determined by a Court following a custody hearing (a trial) or whether you and the other parent agreed on the custody arrangement. Custody agreements are either part of a written contract signed by both parties before a notary or the terms of the agreement are put on the record before a Judge and the transcript of the proceeding embodies the agreement.
Courts generally afford less weight to an agreed-upon custody arrangement as opposed to one ordered by a Court. Great deference is given to a Court that made a previous finding on custody, and therefore, you may have a more difficult time modifying a custody order rendered by a Court after an actual custody hearing.
When you petition the Court to modify a custody order, you bear the burden of proving that
- There has been a “sufficient change of circumstances” since the custody order or stipulation was entered; and
- That modifying the custody order is necessary for the continued “best interests of the child.”
In short, you must show that there is a pressing need to modify a custody order because Courts don’t like to disrupt children’s lives when doing so is unnecessary. In general, if the Court finds there has been a “substantial change in circumstances” the Court will then look to whether it is in the child’s best interest for the custody arrangement to be modified. The Court then makes a determination based on the emotional, intellectual, physical, and social needs of the child, as well as the child’s preferences. As a general rule, the older a child is, the more likely that the Court will factor the desires of the child.
A “sufficient change in circumstances” may be found when a parent refuses to communicate, when a parent precipitates arguments when exchanging the child, when the child exhibits poor personal appearance and hygiene after returning from visits with a parent, and when a parent continually demonstrates inflexibility to co-parent. A “sufficient change in circumstances” can also be found when a parent fails to facilitate phone contact with the children and other parent, participate in family counseling, or creates an unstable environment for the children as a result of ongoing altercations with neighbors. Moreover, a “sufficient change in circumstances” can be found when a parent engages in behavior alienating the child from the other parent by making negative comments about him or her in presence of the child and refusing to obtain counseling. These are only a few examples for illustration.
As with any custody decision, the Court’s guiding principle is the best interests of the child. If you have any question concerning modification of a custody order contact Danziger & Mangold LLP and ask to speak with one of our family law attorneys.