Frequently Asked Questions (“FAQ”)
on Modifying Custody Rights
Q: Is It Possible to Modify Custody Rights?
A: Absolutely. You can go back to court to change a custody order if there is a substantial change of circumstance that has a significant, adverse effect on the child. This includes situations such as visitation problems, erratic behavior, change in employment, residence, or marital status. Because we live in a highly mobile society and situations can easily change, your lawyer can strongly recommend that you periodically evaluate your parenting plan to ensure it still is in your child’s best interests. The courts recognize that many factors can change in the years following divorce, so, though they may be reluctant to change the parenting custody plan, the courts will do so if it is necessary and in the best interest of the child.
The ex-spouses can voluntarily modify the last order by agreeing to changes between themselves. If there is a departure from the last custody order, it is best to put the new, most current changes in writing; oral agreements are difficult to enforce.
Q: What Qualifies as a "Material Change of Circumstances"?
A: This could be the remarriage of one of the parties. Another is that the custodial parent wants to leave the state. One more is a change of health, such as a chronic illness or disease, or economic circumstances, such as losing a job, which will affect the child. Finally, a change in the custodial parent’s lifestyle, such as working nights, might merit a change. Proving the change of circumstances is a prerequisite to having the case heard. The court will still decide this question based on the best interests of the child.
Q: What if I Do Not Like the Present Custody Order? Can I File For Custody in Another State?
A: Bouncing cases across state lines in search of a “favorable” judge who “sees it your way” was very common for years. It made a mess of custody actions, until the enactment of the Uniform Child Custody Jurisdiction Act, or UCCJA. Adopted by all states, it avoids the competition and conflict for jurisdiction between courts of different states. Courts cannot take custody cases unless the child has lived in the state for a certain period of time immediately preceding the filing of the lawsuit. Furthermore, a court cannot reiterate the custody awards of another state, unless there is a genuine emergency. Such modifications would be limited to the emergency, not to wholesale changes in the original custody arrangement.