What can parents do when the current child custody agreement no longer work for one of both of the parents? What if there is imminent danger in the home where the child currently resides? These are just two examples of reasons why a child custody modification is needed.
With the best interests of the child in mind, the court will look at the current agreement and dissect the reasoning behind the request. If there are no current problems, the court will be less likely to alter the agreement. It is the old adage of, “if it ain’t broke, don’t fix it.” In other words, if you are requesting a child custody modification, you had better have a very good reason for the request. If the judge in the case finds your reasoning trivial or suspects this is a more of an issue of the parents being difficult with each other, he or she is unlikely to grant your request.
Some common reason for child custody modification are:
- Relocation of one parent
- Obvious danger to the child
- Death or illness of a parent
- Visitation scheduling problems
Relocation of One Parent
Many people have jobs that eventually require relocation for promotion or to remain employed. There are obviously many other reasons why someone would need to relocate, such as a cheaper cost of living. When this happens, parents find themselves in the very difficult position of having to explain this to their former spouse as well the children.
This type of situation is one the courts will look at in detail to ensure the move is necessary as well as being able to work out a fair custody agreement between the two parents. Some of the things the court will scrutinize are:
- Why is the parent relocating? It may seem extreme, but there are cases when one parent already having custody thinks he or she can completely remove the other parent from the child’s life by moving far away enough that the non-custodial parent will not be able to see the child on a regular basis. They feel as though if the inconvenience may cause the other parent to simply lose interest in maintaining the relationships, thereby removing that person from their lives forever.
- Will the relocation make the current visitation schedule impossible to adhere to? This may be a situation where the parent is moving further away, but not so far that the second parent will not be able to see the child. For instance, if the visitation parent sees the child on a weeknight but would now have to travel multiple hours each way, the court may agree to adjust the days to work better with the parent’s work schedule.
- How will the new schedule affect the children? A great example of this is when the children are involved in local sports or programs. For instance, a son is in a weekend league and now the only way his mother or father can see him is if he gives up the sport to see his mom or dad. As stated earlier, the court looks at the well-being of the child first and if the new visitation schedule will create problems of the child’s everyday life, it may not agree to the decision.
Obvious Danger to the Child
It would be nice to think we live in a perfect world where parents do not present a danger to their child, but that is not the case. Unfortunately, the news is ripe with examples of how parents sometimes put the well-being of their child at risk. In cases such as this, the welfare of the child is the first and only concern of the court. Some conditions of child endangerment are:
- Is the danger to the child immediate? This does not necessarily mean abuse. What if the custodial parent is out of work and unable to pay utility bills? The danger may not be the actual parent, but a relative that is nearby and creating a dangerous situation. The danger to the child will be evaluated and acted upon accordingly.
- Is there domestic violence in the home? An example of this could be if the mother remarries and eventually has domestic violence issues with her new husband. Even if the violence is not immediately directed at the child, this situation is potentially both physically and emotionally damaging to the child.
- Is the child uncomfortable in the home? How adults see danger is often very different from how a child sees danger. If there is a situation in the home the child fears and it is affecting him or her, it may be considered a valid reason for the court to grant a new custody agreement.
Death or Illness of a Parent
If a custodial parent becomes seriously ill or dies, the custodial agreement will have to be changed. However, this does not automatically mean the non-custodial parent will be given full custody of the child. Some of the considerations of the court will be:
- Where does the non-custodial parent live? If the non-custodial parent is not currently located close to the parent and family that has custody, he or she may not be given full custody of the child. In cases such as this, another family member may step up requesting custody so as not to create more turmoil in the child’s life by uprooting the child from the current living situation.
- Does the child want to live with the non-custodial parent? If the child is old enough, it is very likely the court will ask him or her where he or she would prefer to live. If the child offers a valid reason as to why he or she does not wish to live with the custodial parent, that parent may not be granted full custody even though he or she is the only living parent remaining.
- Can the non-custodial parent afford to raise the child? The court will not grant custody to someone that cannot prove he or she is capable of raising the child, financially speaking. Without the ability to demonstrate his or her financial well-being, he or she may risk losing custody even if the other parent dies. In cases such as this, he or she would likely keep his or her visitation rights and the court would try to place the child with another relative, such as a grandparent or aunt/uncle that was willing to step in as a guardian.
Visitation Scheduling Problems
There are numerous reasons why problems arise with a visitations schedule, but not all of them are avoidable. If one parent is complaining about visitation issues, some of the influences the court will investigate are:
- Are the parents communicating properly? Divorces can be emotional and even though there is an agreement in place, communication problems may remain, especially soon after the divorce. The court may realize it is not the visitation schedule causing the problem, but the lack of communication between the parents.
- Why hasn’t the schedule been followed? If one parent is not showing up for his or her visitation, there may or may not be a good reason for this. For instance, his or her work schedule may have changed and now he or she is simply unable to make the scheduled times. At the same time, the custodial parent may not be willing to budge on the agreed upon schedule.
- Have the parents already agreed to a change? Look at our example above and use cooperating parents instead of one parent that is not willing to accommodate the second parent. In a case such as this, the court will see the custodial parent is already working with the other parent to ensure he or she is still able to spend time with their child and should grant a modification without much resistance.
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3 thoughts on “Working Out a Child Custody Modification”
Have not seen my son in 11 years
I’m just a regular person with no legal experience, but if he was taken by someone who is not the biological parent and he is, why didn’t he call the police or file kidnapping charges against this person? Just my thought. Five years is a long time, unless he’s been fighting for his child for that five years.
Hello my name is lacey emmerson and I am trying to get some answers for my husband about his, his son was taken from us about 5 years ago by a women who isn’t even his biological parent and filed child support on my husband while he was in jail for brief time and now they got him for motion for default judgment for support because he was unable to appear before a judge because he was in jail , we was told my someone that we need to file a motion so we can get in front of a judge and let him know that this child was taken from us illegally. Please help us.. will explain better when we talk..thank you