Maury Beaulier

Article Summary:

Guidelines for changing custody after divorce.

Changing Custody

Changing Custody After Divorce
When custody determinations are initially made, they generally are determined based on what is in the children’s best interests. That is the standard that is followed in almost every state. Additionally, many states specifically set out in their statutes specific factors that must be considered when changing custody.

Even after custody has been determined, changing circumstances often result in changing schedules and even changes to the custody arrangement. As a result, courts have the power to modify child custody arrangements and child support to meet the changing needs of the parties and the children.

Custody Changes By Agreement
Often custody changes can be accomplished without appearing in Court so long as the parents agree to the change. However, it is very important to memorialize any agreements made as a court order by submitting a stipulation and order to the court asking for the Judge’s approval of the arrangement. Agreements that are not memorialized as part of a Court order are generally unenforceable.

When the parents are unable to agree on custody changes, the issue can be submitted to the Court. Most states, however, first require the parents to try to mediate their dispute in order to settle their issue out of court before proceeding to a contested hearing on the issue.

Contested Custody Changes
To seek a change of custody, a Motion must be filed along with an affidavit (a sworn statement) supporting that position.

If the matter does proceed to court, it is important to understand the standard that the Court will apply when deciding whether to modify the existing custody arrangement. Different standards apply in different states. However, there are two common elements. In almost all jurisdictions:

1. A parent seeking to change custody through the court usually must show that the conditions have changed substantially since the last custody order;

2. Additionally, it is generally presumed that the court should retain the current custody arrangement unless the party seeking the change custody demonstrates that it has met the statutory criteria by a preponderance of the evidence.

This is where state laws diverge into three general standards that are applied in different states.

Endangerment Standard
In a minority of states, once custody has been determined, it is very difficult to change. To do so, the party seeking the change must file a motion supported by evidence that the children are endangered physically, psychologically or developmentally in their current situation. Courts must also find that the benefit of the change outweighs any harm that would occur by the change. Obviously, this burden is very high and requires that the moving party have a significant amount of new evidence since the last custody order was entered to support their case. Any incidents or information predating the previous custody order is largely irrelevant unless it can be tied into a pattern related to more recent conduct.

Some evidence supporting endangerment claims may include:

1. Police Reports.
Police reports showing numerous disturbances at the custodial parents home can be a sign of instability and may support a change of custody. This is particularly true if the children were present at the time of the disturbances

2. Criminal Records.
Criminal offenses that endanger the children or that leave them without supervision can also be used as powerful evidence in any motion to change custody.

3. Child Protection Reports.
Reports of abuse or neglect relates specifically to the care of the children and are often the strongest possible evidence for a change of custody where the negligence or abuse has been substantiated.

4. School Records.
School records showing significant absenteeism, behavior problems or falling grades cans support claims of instability on the child’s custodial home.

5. Counseling Records.
Counseling or psychological records may reveal problems in the home that lead to symptoms of poor socialization, development or depression issues.

6. Medical Records.
Medical records related to injuries may point to a general lack of care and attention by a custodial parent.

Best Interests Standard
A majority of states use a “best interests of the child” standard when determining whether to modify existing custody arrangements. That means the Courts will look at all circumstances affecting the child and determine whether a change of custody is in the child’s best interests. Even under this standard there is generally a presumption to retain the current custodial arrangement. When applying this standard, the Court is often guided by specific factors to consider set out in the family law code. Some factors may include:

1. The wishes of each of the parents;

2. The physical and psychological capacity of each parent to provide care for the child;

3. The desires of any child who is of a suitable age and maturity to express a desire;

4. The residential and employment stability of each parent;

5. Where there have been any incidents of neglect or abuse;

6. Each parents past history of providing care for the child which is often referred to as determining the child’s primary caretaker.

7. The child’s relationship with siblings or other in home family members including potential second family members.

8. The ability of the parents to communicate and cooperate on child rearing issues;

9. Each parent’s willingness to facilitate and encourage the child’s relationship with the other parent.

10. The child's adjustment to home, school, and community;

11. The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity;

One of the most common questions asked is when a child can decide where they will live. In almost all states, the child’s wishes are only one factor out of many and are never dispositive with regard to the issue. However, as each child matures, their wishes will carry greater weight in contested custody proceedings. There is also one notable exception to the rule. In the State of Georgia, it is presumed that a child age fourteen (14) or older can decide where they will reside. Even that presumption, however, may be rebutted with contrary evidence.

Hybrid Approach
In order to discourage parents from constantly litigating custody, some states use a hybrid approach which makes it more difficult to change custody shortly after a custody order has been entered. In such states for a certain period of time after a custody order has been entered (generally one or two years), any motion for a modification must show not only a change of circumstances, but also that the child is endangered by the child’s current environment. After expiration of the one-or two year period, the standard is reduced to a review of what is in the child’s best interests.

Custody Evaluations
If a Court hears a motion for a change of custody and believes as a result that there may be a basis for the change, it may require a custody evaluation performed. How each parent presents their issues in the custody evaluation can be a critical part of the cases success or failure.

Maury D. Beaulier is an experienced lawyer located in Minnesota. A partner in a 25 attorney firm, he is a sought after speaker in family law/ divorce and criminal defense work. He has been a sought after speaker by news outlets and has appeared on such national television shows as "Eye on America" with Dan Rather. For more information visit: Minnesota Lawyers.com.

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