When a trial court enters a child custody order, it does so with the intention that the provisions of the order are what is best for the child at that time. A goal of these orders is to provide stability and so the court does its best to enter an order that will stand the test of time. Many times, a custody order entered by a court is one that serves the goal of meeting the best interests of the child through the time that the child reaches the age of majority. But other times there are changes in the child’s situation that make the existing custody order no longer what is best for that child. Because a custody order can be in existence until a child is 18 years old, the law recognizes that circumstances may chance and that there needs to be a way for the trial court to alter its order so that the best interests of the child continue to be met. So, how do you know if your custody order can be modified? And how to do modify it?
The statute that governs modification of custody orders provides that a child custody order may be modified upon a showing of a substantial change of circumstances, occurring since the entry of the prior order, which affects the welfare of the child. The vehicle for requesting the change is a motion that is filed in the court where the existing order is found. That motion must set out the changes that have occurred since the last order was entered and must detail how those changes have affected the child. To qualify as changes that are worthy of a modification, the changes must be something that the courts consider “substantial.” Small, everyday changes do not qualify. Additionally, you a must show that those changes have a direct effect on the child. It’s easy to imagine that over the years, many things will change in the lives of the parents and the children, but some changes don’t have that much of an effect on the child’s wellbeing. For example, if a parent moves a few miles away, but that move does not make custody sharing impossible, that move alone is probably not a substantial change – even though it is a change. Our appellate Courts have even said that the simple fact that one parent moves to another state may not qualify as grounds for modification. That is because the changes that have occurred must be ones that affect the child in some way. Those changes can be positive or negative ones – in other words, you don’t have to show that the changes are ones that are detrimental to the child; positive changes may also qualify as reasons for the trial court to change the custody order.
Once a motion to modify has been filed, the trial court will refer the parties to mediation to see if they can work out a new custody agreement without court intervention. This mediation is done through the courts, and the parties attend without their attorneys. If they can work out a new agreement, it is signed by the parties and the judge, and the case is resolved. The parties may also opt for a mediation process that is done outside of the court-sponsored program and, if that is what they choose to do, they would retain a private mediator and the parties, and their attorneys would attend mediation together. A resolution reached at private mediation would then be memorialized in a new custody order. If the parties are unable to agree upon a resolution to a motion to modify, then the trial court makes the ultimate decision.
If the trial court hears the motion to modify, the parties and their attorneys attend a trial, at which evidence is presented, and testimony is given. Usually, both parties will offer testimony and will have other witnesses that come to testify on their behalf. The attorneys will make legal arguments concerning the threshold issue (i.e. whether there has been a substantial change of circumstances that warrants modification) and regarding the custody arrangement that is in the best interest of the child. If the trial court determines that there has not been a substantial change of circumstances affecting the welfare of the child, then the trial court’s inquiry ends there and there is no modification of the custody order. If the court finds that there has been a substantial change of circumstances that affects the welfare of the child, then the court determines what new custody order would be in the best interests of the child and will then enter a new order with the new arrangement.
If you are thinking about modification of a custody order, the attorneys at Collins Family and Elder Law Group can help.
