How to Change Child Custody When the Other Parent Won't Agree
UPDATED: February 8, 2020
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When a child custody agreement is in place, that agreement is legally binding and both parents must share the child according to the terms of that agreement. If you decide you want to change child custody, you can’t make a unilateral decision to do so. This means if both parents do not agree on a modification, you’ll have to go to court and convince the court to change child custody.
Will the Court Change Child Custody?
If you are hoping to change child custody without both parents on board, you may have your work cut out for you. In fact, in many cases, it may not even be possible for you to make this change. There are several key factors that will determine whether you’ll be able to successfully change child custody or not, despite the other parent’s objections.
Waiting Period After the Original Custody Agreement
The first key consideration is the length of time that has passed since the original custody agreement was put into place. Generally, it is considered to be better for the child to have as much consistency as possible. For this reason, among others, most courts will not make a change within a set time frame of the creation of the original custody agreement. This “waiting period” varies by state, but between one and two years is common. There are, of course, exceptions to the waiting period if it is believed the child is in imminent danger of harm if a change is not made quickly.
Reasons for Changing Child Custody
The second consideration is why you want to change child custody. Whether you litigated the issue of custody originally or whether you agreed at the time, once the court signs off on the custody agreement they aren’t just going to change it because you ask them to change it, without some compelling reason to do so. After all, the original child custody agreement or child custody order is in place because either you the parents or the court decided that the agreement was in the best interests of the children.
This means, generally, that the court will change child custody only if there is something different going on now. In legal terms, this is usually referred to as a “material change in circumstances.” In most courts in the United States, before a court will even examine the evidence to determine whether the change is a good idea, the parent requesting the change will be required to show that there has been a material change in circumstances warranting that the court look at the evidence to determine what is in the best interests of the children. If there is no change of circumstances, the court will most likely not even consider the evidence you wish to present. Examples of situations that might constitute such a “material change” could include a long-distance move, a change in living conditions, a change in environment, or a change in the ability of the parent to provide a home or care for the children.
For example, if one parent had been a gambling addict at the time of the original custody agreement and was granted limited visitation, he may be able to prove that he has now been clean for years and deserves another chance. On the other hand, if one parent was considered to be able to provide a better environment originally and she has since moved two violent ex-convicts into the home, this could also constitute a material change that would result in the child needing to be removed from her custody.
Best Interests of the Child
The third thing to consider is whether the change is in the best interests of the child. Ultimately, this factor is often the key deciding factor. The court made its original custody decision by weighing numerous factors to decide what was in the child’s best interests. The decision on modifying or not modifying custody will also be based on the court’s desire to do what is right for the children involved.
How to Ask the Court to Change Child Custody
If you believe you have grounds for a child custody change despite the other parent’s objections, you need to begin the process by filing the required paperwork. Usually, this is done by filing a “motion” with the family court in your area. You will most likely be required to make sure the other parent is “served,” or given a copy of the motion. Initially, evaluation by a social worker may be ordered or you may be required to attend a mediation where you and the other parent will be expected to make an effort to come to an agreement. Unless you come to an agreement, the mediator or social worker will file a report making a recommendation to the judge regarding whether and how the child custody order should be changed. A hearing will be scheduled where you both get to speak and present your evidence and arguments, and a judge then decides what is going to happen.
If you intend to try to modify a custody agreement through litigation, you will need a lawyer to help you. Hiring a lawyer to navigate through these issues is the best chance you have of being successful in petitioning the court for a change.