When parents have a child custody order in place, it is important for parents to know that the child custody order is not unchangeable. While the child custody order, allocation judgement, or time-sharing arrangement the parents currently have concerning child custody is a court order, a variety of life changes can arise that could lead one of the parents to seek a modification. Depending upon the specific circumstances, a modification may be possible. In many states, if the parents simply agree to the modification and such a modification is in the best interests of the child, there is no need to petition the court for a modification. However, if the parents cannot reach an agreement about modifying the child custody order, then the parent seeking the modification will need to petition the court.
Can a Child Custody Order Be Modified?
Child custody orders can almost always be modified under two conditions: when there is a substantial or material change in circumstances, and when the modification is in the best interests of the child. Nearly all courts use the “best interests of the child” standard in determining what an initial child custody arrangement should look like. Even when parents work together to create a child custody arrangement—which can be known as a time-sharing arrangement, a parenting plan, among other terms depending upon the state—the court still needs to agree that the arrangement is in the best interests of the child before it will approve that agreement.
Typically, a court will not consider a modification request or petition unless there has been a substantial, significant, or material change in circumstances. Once it decides that such a change in circumstances has occurred, then it will next determine whether a modification is in the best interests of the child.
Process for Modifying a Child Custody Order
The process for modifying a child custody order will depend upon the state where the parent is seeking the modification, as well as whether the parents agree to the modification. To be clear, state law governs child support order modifications. Accordingly, any parent seeking a modification will need to consult his or her specific state law. Then, the process depends upon whether both parents agree that a modification is appropriate.
When parents agree to a modification, it is usually possible to move forward with the modification and to have the court enter it into the child custody order without too much trouble. However, when the other parent (the parent who is not seeking the modification) does not agree to that modification, the parent who wants to modify the child custody order will need to petition the court. Different states have specific requirements for filing a petition for a modification. Many states also require the parent seeking the modification to comply with notification requirements, such as informing the other parent about plans to seek a modification within a specific amount of time.
When Parents Can Agree to a Modification
If parents can agree to a modification, most states permit the parents to reach an agreement about a modification and to have the terms of the modification take the place of the existing terms. For example, if parents have a particular parenting plan in which Parent A is responsible for transporting the children from school to extracurricular activities on weekdays, but that parent’s job changes and the parent cannot be present for after-school duties, Parent B might agree that it makes sense to have Parent B take on that role instead. In such a scenario, the court can sign off on the modification.
For most parents who are seeking to modify an existing child custody order, it is logical to seek the other parent’s approval before going to the court. When the parents agree, the process is much simpler.
Substantial or Material Change in Circumstances
When parents cannot reach an agreement concerning a modification of an existing child custody order, the parent seeking the modification will need to petition the court. For most state courts to consider modifying an existing child custody order, the parent seeking the modification will need to show that a substantial or material change in circumstances has arisen. Different states use different terminology, but in short, the parent seeking the modification must prove that something very substantial has changed such that a modification is warranted.
Without a showing of a substantial or material change in circumstances, few state courts will approve a parent’s petition to modify an existing child custody order, especially when the petition comes shortly after the original order was entered.
Examples of a Substantial or Material Change in Circumstances
Substantial or material changes in circumstances can vary widely. Common examples of materials changes in circumstances that warrant a court modifying a child custody order include but are not limited to the following:
How to Prove a Substantial or Material Change in Circumstances
Depending upon the reason that a parent is seeking a modification, there are different forms of evidence or proof that the parent may be able to provide to the court. For example, if a parent is seeking a modification due to an upcoming job change and move, the parent can supply a job offer letter that makes clear that parent’s new salary and job location. If a parent is seeking a modification to limit the other parent’s time with the child, the parent seeking the modification may need to supply criminal records, charging documents, or arrest reports that demonstrate the other parent’s inability to provide proper care for the child.
It is important for a parent seeking a modification to work with a lawyer who has experience handling cases in their own state given the complexities of state law.
