While many child custody arrangements are the result of an agreement by parents, tensions often arise as parents try to implement their custody and parenting time plans. In some cases, family courts called upon after a divorce or custody case has been finalized to determine if a modified or entirely new plan is best for children.
Custody vs. Parenting Time
In most jurisdictions, custody (also called legal custody) is the right to make final decisions related to a child’s health, education, religion, and legal issues. Family courts are unlikely to change the award of sole custody unless it can be proven that a “substantial change in circumstances” has occurred in the lives of the children, the parents, or both. The change must be substantial and must clearly have impacted the health or welfare of a child. A request to change custody for anything less is likely to be denied by the court. Even if a parent proves that a substantial change of circumstances has occurred, that parent must also prove that a new custodial arrangement would be in the best interests of the children.
Joint custody is often easier to change. If the custodial relationship has broken down and the parents are unable to make decisions together for the children, that may be sufficient to modify custody so that one parent only has decision-making power. In that event, it may be time to consult with an attorney about seeking sole custody.
In contrast to custody or legal custody, parenting time (sometimes referred to as “physical custody” or “visitation”) can usually be modified by a more simplistic showing that the change is in the best interests of the children. In other words, there may not be any requirement regarding a substantial change in circumstances. Though the legal burden may not be as high as that which applies in a custody modification, in practical terms, the burden is on the parent seeking the change to show that the status quo is not working.
Below are a few circumstances that may justify a change:
1. When Your Child’s Best Interests Aren’t Being Met.
Parents often disagree about what is in their children’s best interests. If the non-custodial parent can persuasively show that a child’s best interests aren’t being met, the court may modify the existing custody or parenting time arrangement.
However, proving that a parent isn’t acting in the children’s best interests is not always easy. Family law cases often represent the highest proportion of case types on a court’s docket. As a result, family court judges hear hundreds of cases each year. The facts of your case may seem compelling to you, but your judge may disagree. A good attorney can advise you on the strength of your case and also frame your case in a way that is most likely to garner the attention and concern of the judge.
Disagreements on lifestyle or minor parenting choices are rarely sufficient grounds for a judge to modify parenting time. Instead, a parent must prove that there is a real risk to the children unless the plan is changed. The risk could be physical, social, psychological or developmental.
2. Domestic Violence and Exposure to Substance Abuse.
If you have proof that children have been exposed to domestic violence, substance abuse, or similar events, a court may decide that modification of parenting time and custody is appropriate. You should talk to an attorney about options for emergency relief in these scenarios. It may not be sufficient to show that the other parent has used an illicit substance or drank alcohol to excess. You may be required to demonstrate how the behavior in question has or will impact the children.
3. When A Parent Moves or Employment Changes.
When one parent moves a significant distance away from the other parent, it will naturally have an impact on the parenting plan for your children. Even if you and your child’s parent have worked well together in the past, an increase in distance between the two homes can create conflict. It is important to understand your rights and develop an effective strategy in the event of a relocation that impacts your parenting plan. In these scenarios, timing is crucial. If the relocation occurs before protective measures are taken, your rights may be compromised.
Sometimes, a relocation can be grounds to modify custody in addition to parenting time. It is possible that the parent who is moving will be perceived as less stable or child-centered. Accordingly, if you or your ex is preparing to relocate, you should see an attorney as soon as possible.
4. When Your Ex Won’t Follow the Current Arrangement.
If you’re being denied the right to see your children during scheduled visitation, you may have the option to seek a modification of the plan, make-up parenting time, or some other enforcement of the parenting plan. If your ex breaches the parenting plan, keep notes, e-mails and any other records you have. If it becomes a habit, see an attorney and ask about available remedies in your state.