How to Modify Custody and Visitation Orders

Many parents who go through a divorce and child custody dispute are left feeling defeated when everything has been finalized. This is especially true for parents who did not receive primary custody. But it's important to remember that a finalized child custody agreement is not necessarily a permanent one. As time goes on and circumstances change, child custody orders can be modified. This can occur either as the result of a consent order or a motion filed with the courts.

The consent order is essentially an agreement to change the current agreement. Say, for instance, that a child has been living primarily with his mom. As he enters into his teenage years, he decides that he would prefer to live with his dad most of the time. His mom and dad may discuss the matter and agree to honor his wishes. They will formalize their new arrangement in a consent decree showing that both parties agreed to make the change. The consent decree is then as enforceable as the original custody agreement.

The other way to modify a custody agreement is through the courts. One parent can file a motion to modify the custody agreement, often seeking sole custody or primary custody. In order to modify the current arrangement, however, the parent filing the motion has to demonstrate that such a modification is warranted due to a "substantial change in circumstances."Any changes in a co-parent's household that could put the children in danger or harm them would be a good reason to seek a modification. For instance, a parent may learn that their former spouse is abusing drugs or alcohol (or has relapsed after previously seeking help for substance abuse). As another example, a parent may learn that their co-parent has started to become violent or otherwise abusive toward the children. If a co-parent has experienced a major change in job or working hours, this could warrant a modification of custody as well. For instance, it probably doesn't make sense for a co-parent to maintain primary custody if he or she has to regularly work overnight shifts and weekends. Minor children need a parent to be there for most of the hours that they are out of school. Finally, a major relocation could warrant a change in custody. If an ex-spouse decides to move out of town or out of state, you may be able to seek a change in the custody agreement.

Courts differ on what they consider a substantial change. However, below are a number of examples that could be considered substantial changes leading to a change in the previous order:

  • Geographic move. If a custodial parent intends to make a significant geographic move, it may constitute a changed circumstance that would cause a court to modify a custody or visitation order. In that situation some courts switch custody from one parent to the other. Most judges, however, ask the parents to work out a plan under which both parents may continue to have significant contact with their children. The Court will carefully examine the best interests of the child and make a decision about which parent should have custody. In some states, if a custody order has been entered, in the event one parent intends to relocate their residence, they must provide written notice to the other parent that meets certain statutory requirements prior to their move. If the parent moving fails to provide this notice prior to their move, they may be ordered to return the children to the state (if they have moved out of state), or they may jeopardize their custodial rights under the previous order.
  • Change in lifestyle. A parent can obtain a change in a custody or visitation order if substantial changes in the other parent's lifestyle threaten or harm the child. For example, if a custodial parent begins leaving a young child unsupervised or fails to get the child appropriate medical treatment, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or only under the watch of a court appointed supervisor).
  • The Child's desires. Older more mature children can have some input in deciding with which parent he or she will live with primarily. However, although that child's wishes can be considered, the child does not have a right to ultimately "choose" which parent to live with. It is also ill advised to encourage a child to request a change in custody as oftentimes the court will view this as placing undue pressure on the child. This behavior will reflect badly on the parent pressuring/encouraging the child and could affect that parent's custody and visitation rights.
  • Deviation from custody schedule. In some cases, the parties may have deviated from the custody order to such an extent, and for a long enough time, that a modification may become possible to simply make legitimate what the parties have been doing. For example, if one party received sole custody, but the parties have been in reality exercising fifty-fifty custody for a long enough period of time, a court may entertain a modification to formalize what the parties have been doing.