Generally, a couple who divorces or legally separates must make a determination regarding the physical and legal custody of their children and visitation rights, either by mutual agreement or court order. When an established child custody arrangement no longer works or is no longer desired, one or both parents may seek to modify custody. Where a parent is seeking to modify custody through the courts, the parent must generally be able to show that there has been a substantial change in conditions which warrants the modification.

Types of Custody
Upon divorce or legal separation, parents may either mutually agree on or a court may order an arrangement of custody for the former spouses’ children. Custody may be legal, physical or some combination of both. Legal custody authorizes one or both parents to make important decisions about the child’s upbringing. Physical custody is the right of one or both parents to have the child live with them. The parent with physical custody is called the custodial parent, and the noncustodial parent is almost always provided with visitation rights.

Modification of Custody
Sometimes former spouses may wish to modify the terms of a child custody arrangement previously issued in their final decree of divorce or legal separation. The parents may modify the custody agreement with or without court approval, but without court approval, the new agreement may not be as reliable or enforceable. In issuing a modification of a child custody order, a court will almost always grant a mutually agreed upon modification. In a contested case, where only one parent seeks to modify custody or visitation, courts must consider what would be in the best interest of the child.

Changed Circumstances
In general, the state court which issued the original custody and visitation agreement has the authority to restrict, deny or otherwise modify the terms of the agreement. When one parent wishes to change an existing court ordered custody arrangement, they must show that there has been a substantial change in circumstances since the order and that they can provide a better environment for the child. “Substantially changed circumstances” might include:

  • Significant changes in the lifestyle of one parent
  • A destabilized household
  • Changes in geographic locations
  • The child’s preference to live with noncustodial parent

    Requiring proof of a substantial change in circumstances since the custody award was issued helps to ensure the stability of custody agreements by preventing frequent and repeated modification requests.

    Changes in Lifestyle
    Generally, a substantial change in the lifestyle of one of the parents may justify a modification in custody and visitation arrangements. This becomes especially true where such a change in lifestyle threatens to or actually harms the child in some way. For example, if the custodial parent takes on a new night job that requires them to leave their young child at home alone, the noncustodial parent may wish to modify custody. Or, if the noncustodial parent begins abusing alcohol or drugs, the custodial parent may wish to petition the court to modify or eliminate the noncustodial parent’s visitation rights.

    Destabilization of the Household
    Where an event occurs in the household of one parent that disrupts the stability of the home for a child, the other parent may seek a modification of custody or visitation. Examples of such devastating events might include the arrest of the parent for a violent crime, death of the parent, abandonment of the child or an allegation of sexual abuse by the parent. A modification might be granted where the noncustodial parent can prove that the custodial parent’s household has become destabilized since the original custody or visitation order was issued.

    Geographic Moves
    Typically, the relocation of a custodial parent will constitute a change in circumstances substantial enough to merit a custody modification if the move is of a significant distance. The purpose of such a modification is to accommodate the needs and visitation rights of the noncustodial parent. This may be done by switching or alternating custody between the parents or by requiring the relocating parent to pay for visitation with the noncustodian. In some cases, a court may forbid the removal of the child from the state without first giving written notice to the noncustodial parent, thus giving them the opportunity to contest or modify the custody agreement.

    Child Preference
    In some instances, where a child develops a preference to live with their noncustodial parent, a court may grant deference to their request and modify the custody order. Typically, to consider a child’s preference, the child must be “older” (e.g., 12 or above) and the child’s reasoning must be sound (i.e., not the result of bribery by the noncustodian or because the noncustodial parent would be less disciplinary). In addition, a child’s preference is most often only considered as one factor in most states in deciding whether to petition for a modification of the custody agreement.

    Temporary Custody Modifications
    A custody modification may also be sought for a temporary change in circumstances. For example, if a custodial parent is going to be out of the state temporarily or if they become seriously ill or injured, a court may issue a temporary modification of their custody. In such a case, the original custody arrangements may be restored when circumstances return to normal.