In the United States, there are two parts to custody: physical and legal. Physical custody refers to where the children physically live and legal custody refers to the parent having the right to make important decisions about the child. Unless there is violence in the family, the child has special needs, the parents live far apart or there is another extenuating circumstance relevant, joint custody is presumed to be in the best interest of the child. A child custody agreement is legally binding and demands that both parents share the child according to the terms of that agreement.
However, there are cases when someone might want to modify child custody in the best interest of the child’s safety and well-being. The court will typically only change a custody agreement if something dramatically different is happening with one parent, referred to as a “material change in circumstances.” Material changes include a long-distance move, change in living conditions, change in the environment or a change in the parent’s ability to provide a decent home and good care for the child.
A specific example of a material change that would warrant custody modification: The primary parent was completely fit to provide care during the time of the original agreement, but has since developed an addiction to drugs or alcohol which inhibits them from caring for the child properly.
Modification Time Frame
The court usually considers it best for children to have consistency, and for this reason, most will not make a change within a certain time frame of the creation of the original agreement. The waiting period will vary by each state, but one to two years is most common. Of course, if a child is in imminent danger the process will be sped up so they can be safely relocated to a responsible caregiver.
Essential Questions for Modification
General factors to question:
- Parents’ conduct and moral standards
- Which parent is more likely to act in the child’s best interest
- Which parent will allow the child frequent, continuing contact with the other
- The depth, quality and overall nature of the parent-child relationship
More specific questions:
- Will joint legal custody or joint physical custody be better for the child’s physical, psychological and emotional needs?
- Which parent has the better ability to give first priority to the child’s welfare?
- Are the parents able to reach shared decisions in the child’s best interest?
- Can both parents encourage and accept a positive relationship between the child and other parent?
- What is the distance between the parents’ homes?
- What are the child’s preferences?
- Are the parents mature and willing enough to protect the child from their own conflict?
- Can parents cooperate with each other and make joint decisions?
- Is there any history or future potential of child abuse, spousal abuse or kidnapping?