How to Modify Child Custody Orders

When making a decision about child custody, family law courts favor stable living arrangements rather than disruptive change. After a custody decision has been made, a court may modify child custody only if there has been a material change of circumstances that suggest it is in the best interest of the child to change custody from one parent to the other. If you would like to modify a child custody order, you will need to file a petition to reopen the custody order and demonstrate why the court should disrupt the child's living situation and change custody.

Basis for Modifying Child Custody

Before you file your suit to modify child custody, you will need to determine if you have a basis for modification. Identifying the basis for your modification is a crucial first step. If the court determines that your modification request was without merit, they could order you to pay the other parent’s attorney’s fees.

Keep in mind that courts do not like to disrupt the living arrangements of children without cause, so the burden is on the petitioner to demonstrate that a material change in circumstances warrants a change in custody. Every state has its own rules regarding what is considered a material change in circumstances to justify a modification, but it is generally true that your dissatisfaction with the parenting plan or the visitation schedule is not enough. You must be able to argue that the child's best interest is served by modifying a custody order due to a material change in circumstance. Examples of situations that may justify modification of child custody are: 

  • The other parent is living with an abusive boyfriend/girlfriend.

  • The other parent has developed drug addiction issues.

  • The other parent has been reported to a child welfare agency for neglect.

  • You have eliminated the reasons that you lost custody from your life, and are in a better position to care for the child than the other parent

Most family codes provide language broad enough to encompass a variety of situations, but do not provide specific criteria that will automatically change custody. Keep in mind that you must show that you are prepared to be the custodial parent; a court won't modify an order unless the child is going to a situation in which they will be adequately cared for. Ultimately, the duty of the court is to focus on the best interest of the child, so even if you think you have a compelling reason to modify custody, the court may not find it compelling enough to show that a modification is best for the child.

Filing the Petition to Modify Child Custody

Once your basis is identified, you will need to file a petition or motion to modify child custody in the court that ordered the original child custody arrangement. If your child has moved to another county or state, you will still have to file a motion to reopen the original child custody suit, but include a request to transfer the case to where the child now resides because venue follows the child. After your motion is filed, have the other parent served with a copy of the motion.

After the child custody case is reopened, it will proceed in a similar manner to the original child custody suit. You can request temporary orders, file discovery motions, and request a final hearing in an effort to demonstrate you deserve custody. The main difference is that the burden is somewhat more stringent. You must show that due to a material change in circumstance, it is in the child's best interest to leave the other parent and move in with you.

The Modification Order

Once the court makes a ruling at a final hearing, prepare a written order modifying child custody that reflects the ruling. If the order doesn’t make it to writing, you will have a difficult time enforcing it later. The wording of this document is extremely important to protect your child’s best interest. Even if you choose not to consult with an attorney while the modification suit was pending, you may want to consult with one now to understand how to properly word the order modifying child custody. Otherwise, you may end up accidentally waiving certain rights associated with your new custody arrangement.

Getting Legal Help with a Petition to Modify Child Custody

Modifying child custody is a difficult process that requires carefully-crafted arguments and legally-sufficient proof in order to convince a court that something as disruptive as a change in custody is in the best interest of the child. You should not attempt to modify child custody without the assistance of a child custody attorney. An attorney can help you identify your basis for a modification, make your argument to the court, and ensure that any modification order that is granted accurately reflects your wishes and the best interest of the child.