Modification of Existing Order (Generally)
If the Court has previously entered a "Decree of Divorce" or a "Decree of Paternity ' involving you and your child, and you believe there has been a substantial and material change in the circumstances in the areas of child custody, visitation or the parties' incomes (which are used to determine child support), you may qualify to receive a modification of these previously entered court orders.
The following information may be relevant in the Court's decision to modify an existing order:
VISITATION: Has there been a significant increase in the amount of time that you have spent with your child or children? Can you demonstrate this increase in time spent with your child or children by producing a calendar of time spent with your child and/or statements from third parties?
CHILD SUPPORT: Has your income significantly decreased due to no fault of your own? Is this decease more than 25%? Or alternatively, has there been a significant increase in the income of the other parent?
CHILD CUSTODY: Has there been a significant increase in the amount of time you have spent with your child or children? Can you demonstrate this increase in the number of overnights you have spent with your child or children by producing a calendar of overnights spent with the child or children and/or statements from third parties?
Modification of Custody
Either parent may file with the appropriate court a petition to modify an existing custody order.
If you and the other parent do not stipulate to the modification, the court must do two things: First, it must determine whether there has been a material and substantial change in circumstances since the controlling order was entered. Second, the court must determine whether modifying custody would be an improvement for and in the best interests of the child. If the case is contested, the parties will have to present evidence of both.
Examples of material and substantial changes after the controlling custody order may include that the parents have remarried, the parents have moved to new communities, or that the child needs to change schools.
When modifying custody, the court considers the best interests of the child and many factors concerning both the child and the parents. Factors identified in the statutes are listed below, however, some of these factors might not be relevant in your case. And there might be factors relevant in your case that are not listed.
General factors if the parents dispute the change in custody:
- the parents' conduct and moral standards;
- which parent is more likely to act in the child's best interest;
- which parent is more likely to allow the child frequent and continuing contact with the other parent;
- the depth, quality, and nature of the relationship between a parent and child.
Special factors if there is a request to change any form of joint legal custody or joint physical custody:
- whether joint legal custody or joint physical custody will benefit the child's physical, psychological, and emotional needs or the child's development;
- the parents' ability to give first priority to the child's welfare and reach shared decisions in the child's best interest;
- whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent, including the sharing of love, affection, and contact between the child and the other parent;
- whether both parents participated in raising the child before the divorce;
- the distance between the parents' homes;
- the child's preference (if the child can form a preference about joint legal or physical custody);
- the parents' maturity and their willingness and ability to protect the child from conflict that may arise between the parents;
- the parents' ability to cooperate with each other and make decisions jointly;
- any history of, or potential for, child abuse, spouse abuse, or kidnapping; and
- any other factors the court finds relevant.
The Law Offices T.R. Spencer & Associates, P.C. would be happy to discuss and assist in resolving your custody issues. TR Spencer & Associates, P.C. does not give free in-person consultations, however we do give short consultations over the phone.