Even though the parents or the judge originally believed that a custody order was appropriate for the children of the divorced couple, a change of circumstances may necessitate some changes to the custody agreement in place.
Informal discussions, mediation, or arbitration should first be attempted to work out a new arrangement, but if those attempts fail, the requesting parent will have to file a Petition for Modification. The other parent must file an answer to this petition, or the Petitioner will automatically get the custody arrangement they requested by default.
The court must follow a two-part test in which the petitioner has the burden of establishing the following:
- that a “material and substantial change in circumstance” has occurred since the last order.
- that a custody change is in the “best interest” of the child.
The petitioning parent has the burden to show sufficient evidence that there are necessary changes to the custody order to protect or benefit the child.
A relocation of one of the parents may be a change that would justify a modification. However, if a judge decides that the move is not in the best interests of the child, they may not grant a custody change that would allow the child to move. The court will consider many factors, including the reason the custodial parent wants to move, the extra difficulty or costs for both parents to still have quality parent-child time, the parent’s financial situation, and other pertinent facts.
A parent’s remarriage or the child’s need to change schools for their benefit could be considered a viable change of circumstances to grant custodial changes.
Custody courts prefer stability and continuity in the child’s life and will serious consider whether a change is necessary. Before making a change, there main consideration is the best interest of the child, not the parents by reviewing the following:
- Which parent has functioned as the “primary caregiver;”
- Which parent has the deepest emotional bond with the child;
- Any benefit of keeping siblings together;
- The parent’s real desire for custody;
- The parent’s ability to provide personal, loving care;
- The financial situation of each of the parties;
- Any parental drug or alcohol abuse which impairs their abilities to parent.
- Reasons for relinquished custody in the past;
- Religious compatibility with the child;
- Extended family and their location;
- Whether the parent has intentionally exposed the child to harmful material, such as pornography;
- Whether the child is well adjusted, happy, and thriving.
- The preference of the child if they are of sufficient age and maturity;
- Past conduct, emotional stability, and “moral standards” of each of the parties;
- Which parent will most likely not prevent, but encourage “frequent and continuing contact” with the non-custodial parent;
- Any history of child or spousal abuse, neglect, threats, or kidnapping.
- The results of a child custody evaluation report, if performed.
This very emotional and complicated process would best be performed by a competent and experience family law attorney who will guide you through the process and try to achieve the best income for you and your child’s needs. Please contact the experienced family law attorneys at Spencer & Jensen, LLC at 801-566-1884 for advice and assistance.