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How to Change Custody

 

If you have children and are getting a divorce, you will have to provide  a parenting  plan. Legal custody and physical custody will be awarded to you, to your ex-spouse, or to both of you jointly.. If you feel later on that the custody arrangement is flawed, is not working, and meet the requirements mentioned below,, you may consider filing  a “petition to modify”. This pleading begins a process of responses, settlement discussions, and possibly trial.  The  outcome will require consideration of the following:

  1. Material and substantial changes in circumstances.

If there has been a material and substantial change in the life of either the child or one or both of the parents, then a court may so find.. These changes can range from a new job, religious change, one of the parents getting remarried, or a drastic change in health on either the part of the child or the parent. Also, when a child is 14 years old in Utah, the court will give added weight to the preference of that child.  However, just because one or more material and substantial  changes in circumstances have been made, there is no obligation on the court to change the custody arrangement.

  1. The best interests of the child.

If a party can prove that a substantial change in the life of the child has taken place, then a court will decide if the proposed change will be in the child’s best interests.  But “best interests” can be somewhat subjective.  It is not unusual for both parents to claim the best interests of the child or children can only be with the parent asserting it.  

If you are able to show there has been a substantial and material (i.e., “important”) change in circumstances, and that the proposed parenting plan  is in the child’s best interest,  the court will be more likely  to modify.

For all your needs and questions regarding divorce, parentage, custody, and other family law issues, contact the Huntsman Firm.

Modifying Your Child Custody Agreement

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?

MODIFICATION OF ORDER

A Court enters an Order, sometimes called a “Decree”, after a trial or settlement. The terms of that Order become the law of the case. Property settlement, debt allocation, child custody, parent-time, child support, alimony, and other aspects of a divorcing party’s duties to each other and to the Court are thus established until further order of the Court.

But life goes on. Situations change. Employment, health, relocation, drug or alcohol abuse, incarceration, and many other factors may suggest a need for a new, more workable court order. Sometimes  an existing decree or order simply becomes unworkable or impractical.

There are two ways to modify a court order. One is by stipulation, or agreement. A proposed order filed with the stipulation must show the required basis for modification.

The other is by petition and, if necessary, trial.

In either case the petitioner must prove that there have been substantial and material changes in the lives of a party or children of the parties since the last order, and that a modification would be an improvement for and in the best interests of the children. Do not misuse the legal system by filing orders to show cause or protective orders just for the purpose of trying to obtain a modification.