Modification of a Child Custody Order or Agreement

In This Guide

• Changing a Custody Agreement
• Filing a Motion to Modify
• What is a Change in Circumstance?

Child Custody Guide Topics

• Introduction to Child Custody
• Types of Child Custody
• Who Gets Custody?
• Going to Court
• Out-of-Court Custody Agreement
• Visitation Rights
• Custody Between States
• Emergency Custody Issues
• Hiring a Child Custody Attorney
• Adoption

Why would a parent need to change a custody agreement? As children grow, their needs change. They may experience difficulty in school and need to be enrolled in a private education facility that will require less time for visitation with the non-custodial parent. Another scenario might be if there was an accident and the child requires long-term specialized medical treatment that can only be found at a facility outside the state.

A parent may want to obtain a change in custody or visitation if substantial changes in the other parent's lifestyle threatens to harm the child. Examples might include if one parent starts to abuse drugs or alcohol, or leaves a young child home alone. If one parent becomes incarcerated or incapacitated in some way which leaves them unable to care for the children might be another reason for a modification.

If a parent repeatedly and unreasonably fails to take the children as provided in the court order, you may request the court to find your ex-partner in contempt of court. In extreme cases, the sudden death of a parent will require a modification.

Changing a Child Custody Agreement

Changes may occur anytime by mutual agreement of both parents. To be legally binding, the agreement must be submitted to the court for approval. If the court does not approve the agreement, then it is not in effect and the parents are not required to follow it.

Motion for Modification of Custody Order

Either parent may bring a motion to return to court and request a change in custody and/or visitation if there is a substantial change in circumstances that supports the parent's claim that a change would be in the children's best interests.

If a court hears a motion for a change of custody and believes as a result that there may be a basis for the change, it may require a custody evaluation to be performed. How each parent presents their issues in the custody evaluation can be a critical part of these success or failure of the case.

Circumstances Under Which Custody May Be Modified

Under the laws in some states, to successfully petition the court for a modification, the parent must demonstrate two things:

1. That there has been a substantial change in circumstances that warrant a change in the parenting plan or custody order
2. It is in the best interests of the children to grant the modification.

What is a Substantial Change in Circumstance?

A substantial change in circumstance usually means a substantial and permanent change. It cannot be temporary or be caused by something the parent voluntarily did. Some of the factors the court may consider in modifying a custody agreement include:

• Any difficulties in carrying out the current custody or parenting plan
• The physical and mental health of the parents
• The financial Circumstances of each parent
• The parents' relationship with one another
• Any deliberate acts by either parent to prevent the other from spending time with the child
• The level of involvement of each parent in the child's life
• The length of time the child has spent with each parent
• The type of living environment each parent can provide

While any one of these factors on their own may not be enough to justify a change or modification, two or more together may be sufficient evidence for the court to grant the change.