Modifying Child Custody

What you need to change your child custody order depends on how the custody order got decided. Judgments may get decided in two ways:

• Consent Judgment: By the parties' agreement or consent (settlement) or,

• Considered Judgment: By the judge after a contradictory hearing (trial)

Determine whether your existing custody order is a consent or considered judgment. The type of judgment determines what you may need and when you can file to change an existing custody order. When a parent requests a child custody modification, they have the burden of proof to show why the change is necessary. 

Modifying Consent Judgments

A consent judgment is where the Court approves an agreement made between parties. The parties may settle or compromise to an agreement to a child custody arrangement. The Court does not hear or accept any evidence about each parent's ability to take care of the children.

To change a consent order of custody, you must show two things:

1. There has been a material change in circumstances since the existing custody order.

2. The proposed change in custody is in the best interest of the children.

You must prove both things to the court to make a custody change.

Modifying Considered Judgments

A considered judgment is where the Court hears and accepts evidence. The judge decides the child custody arrangement after hearing evidence presented at trial.

To change a considered order of custody, you must show two things:

1. There has been a material change in circumstances since the existing custody order.

2. The continuation of the existing order is detrimental to the children, or the benefit to the child of a change in custody outweighs the harm.

You must prove both things to the court to make a custody change and proof must be done by "clear and convincing evidence."

To change a custody agreement there are different standards to show the court. In a situation where there is a consent judgment, you must show the proposed change is in the "best interest" of the child. In a situation where there is a considered judgment, you must show either that the "continuation of the existing order is detrimental to the children, or the benefit to the child of a change in custody outweighs the harm."

Best Interest of the Child

A court may determine whether a proposed change is in the best interest of the child. The standard to change a consent judgment requires the change to be in the best interest of the child. This means the person seeking a change in custody has to show how the new arrangement is better. The court reviews this on a case-by-case basis. This standard is usually easier to change than the standard for a considered decree. Learn more about best interest of the child here.

Continuation Of The Existing Custody Arrangement Is Detrimental To The Child

A court may determine whether the child will suffer if the existing court order stays in place. You can ask for a change in child custody under a considered decree when the "continuation of the existing custody arrangement is detrimental to the child." The court reviews each situation on a case-by-case basis. This standard is usually harder to change than the standard for a consent judgment.

Benefit To The Child Of A Change In Custody Outweighs The Harm 

A court may determine whether the impact of the change would outweigh the harm. Courts presume in an existing court order that a child is safe and stable. When there is any change there may be disruption to the child's situation. Courts consider whether the changes would benefit the child by outweighing the harm. In a considered decree the court reviews each situation on a case-by-case basis. This standard is harder to change than the standard for a consent judgment.

Courts prefer stability when it comes to custody orders. You may want to wait to file a modification to an existing custody order when there is a "material change in circumstances". The change must impact the child and occur after the previous order got decided. The person asking the Court to change the custody has the burden to prove why the change should get made. The Court will consider whether the change is in the best interests of the child. 

The following is a list of situations or scenarios that may result in you needing to make changes in a child custody arrangement: 

• Moving Moving might mean that you need to change a child custody arrangement. A court may need to approve relocating a child. The court will examine the situation to make sure the change is in the best interest of the child.
• Non-Compliance With The Current Custody Agreement When the other parent does not follow the agreement or the terms you might need to change the judgment. You might need to seek full custody and/or a change in the visitation schedule.
• Child Endangerment When the child is in immediate danger you may need to ask the court to change your child custody order. This may be the case when there is sexual, physical, or emotional abuse. You can ask the court to change the order to protect your child from any abuse or danger.
• Changing Needs Of A Child When a child gets older or has different needs you might need to change a child custody order. One parent might better meet the needs of the child at certain times in their life.
• Changed Marital Status When you or the other parent get married to another person, you might need to request a change in child custody. A new spouse may result in various changes to a home.
• Active Military Duty When you or the other parent are in the military and need to go for active-duty you might need to request a change. A court may put a temporary order in place during the duration of the deployment.
• Death Of A Parent If you or the other parent dies, then in some situations you may need to request a change in child custody. Sometimes a family member or close friend may get custody of a child after a death.