Factors Affecting Modification of Custody Orders

When you become a stepfather, it may take time to adjust to the role. And if you have children of your own, your new blended family may experience some growing pains while everyone becomes accustomed to their living arrangements.

A significant change in one’s family relationship may be cause for reevaluating existing custody arrangements. Sometimes, when people remarry, their former spouses feel resentful and don’t want their children living in that home. A new marriage can also create a stronger financial foundation, so newly married couples may wish to modify custody because they believe a child would have a better life in their custody. A child may have strong preferences, too, about where he or she wants to live.

A custody order cannot be modified without there being a material change in circumstances, and the process of modifying custody can be complicated. If you or your former spouse are seeking to modify a custody order, the following information may be helpful to you.

The Burden of Proof

While custody laws vary from state to state, every state gives preference to existing custody orders. In order to modify an order, the parent requesting the change must provide proof of a “material change of circumstances,” such as:

  • The parent who has primary physical custody is endangering the child in some way, such as abusing drugs or alcohol, or living with someone who is abusive or has a criminal record
  • The parent seeking custody is better able to provide for the child’s physical and emotional needs
  • A parent has remedied personal problems, such as drug abuse, that resulted in the other parent’s having sole custody
  • A parent who is moving out of state wants to take the child.

Only judges can modify an existing custody order, and they weigh several factors when deciding whether a change is warranted.

The Child’s Best Interest

Judges want to ensure a child’s life would not be disrupted by a change in custody, and in accordance with that mission, most courts are highly unlikely to modify a custody agreement that’s less than two years old. When children are learning, growing and developing social connections, moving them to a new neighborhood or school can undermine their sense of security and interfere with their happiness.

In some states, petitioning parents must prove not only that they are better able to provide for a child, but that the current custody arrangement is a detriment to the child’s well being.

The court will consider a child’s interpersonal relationships, especially whether changing custody would interfere with or strengthen sibling bonds, and if a child is old enough to make informed decisions, the court may also consider the child’s wishes about custody.

When one parent is moving out of state, the issue of custody can be difficult to sort out. Any custody matter that crosses state lines requires the help of attorneys, because even if the parents should agree to joint custody, the legal logistics of establishing an interstate custody agreement are complex. Parents should also be aware that a court’s decision in one state cannot be reversed by a court in another state.

The Process

Generally, modifying a custody order begins with one parent filing a petition with the court. Sometime after that, the court schedules a hearing. If at the hearing parents can agree on a revised custody agreement, the process may be over fairly quickly. But if they can’t agree, the court may require testimony from several witnesses, an inspection of each parental home and other evidence, all factors that can lead to a lengthy dispute that may create anxiety for children.

It’s often difficult for parents to remain objective, when engaged in a custody dispute with their former spouse. But no matter how they feel about each other, ex-spouses may be able to resolve custody disputes amicably, if they put their child’s best interests ahead of their own.

Attorney Rebekah Damen Lusk

Attorney Rebekah LuskRebekah Damen Lusk is the Owner at Lusk Law, LLC. Rebekah brings personal experiences as a small business owner, real estate investor and landlord to the task of practicing law and working with clients. Her practice includes civil litigation, business, employment, landlord/tenant, real estate, family, equine and animal law. [ Attorney Bio ]

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