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Child Custody
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How to Modify Child Custody Arrangements

The legal basis for modifying child custody and visitation orders is changed circumstances. Once a final judicial custody determination is made and an order has been entered, a party seeking to modify a permanent custody order is able to do so only upon making a showing of a significant change in circumstances. That change must be great enough to affect the child in such a way that the proposed modification is necessary to the child's welfare and best interests.

Changes in Circumstance

What types of events or occurrences might meet the change in circumstances test?

  • relocation of either parent
  • frustration of visitation
  • acts of domestic violence
  • jailing of custodial parent
  • preference of the child if of a suitable age (usually teens above 13 or 14)

The best interests of the child test and change in circumstances legal standard are adjuncts of one another. The changed circumstances rule is triggered in instances where a final adjudication of custody has been made. The best interests of the child legal standard applies when the court makes an initial custody determination, as well as when a court adjudicates custody following any interim or temporary custody order. The change in circumstances standard requires a heightened burden of proof beyond the norm of the best interests of the child test.

If such a showing of significant changed circumstances cannot be made, any modification in the custody or visitation order would be deemed an abuse of the court's discretion and would not be considered to be in the child's best interests. After all, modifications to existing orders without the requisite underlying significant changes in circumstances are considered to be a disturbance to the child's stable home environment and her enjoyment of benefits of same. The change in circumstances standard fosters the goal of preserving needs for continuity and stability in child custody plans, unless a significant change in circumstances warrants a different arrangement to serve a child's best interests.

Burden of Persuasion

Children have a strong need for stability and continuity. Because of these childhood needs and the courts' and legislatures' concerns for preserving them, the burden of persuasion under the changed circumstances test is on the movant to show how circumstances have changed specifically and why the proposed custody modification would serve the child's best interests and welfare.

That burden has two components in custody and visitation modification proceedings:

  • The party seeking to modify an existing custody or visitation order assumes the burden of persuading the judge that a new custody plan is in the child's best interests.
  • The party seeking to modify an existing custody or visitation order assumes the burden of submitting sufficient evidence of a substantial change in circumstances that warrants modification.