When spouses make the tough call to go their separate ways, one of the most trying decisions is who gets child custody. Often, couples litigate on this issue, and the court decides what is best for the children. At other times, couples use alternative dispute resolution methods to agree on the best way forward. The parents then do their best to adhere to the terms of the agreement, having put it down in writing.

However, child custody arrangements are not always smooth, and parents may find themselves at loggerheads with each other. The court understands this and allows parents to litigate the matter once again when the need arises. For the negotiations to ensure, the parent bringing up the issue must prove that:

  • Changing the child custody agreement is in the best interests of the children
  • The custody situation has since changed, and the child's welfare has suffered as a result

If the parent can provide sufficient evidence before the court to prove one or both arguments, the court can reopen the case. We will look at situations where you or your co-parent can successfully petition the court for modifications.

Grounds for Child Custody Modification

You or your co-parent can use the following reasons as grounds to alter the current child custody arrangement:

Physical Relocation

Suppose the custodial parent wants to move out of state, the non-custodial parent can petition the court to modify the child custody agreement. However, the court does not often see relocation as reason enough for change unless the non-custodial parent can prove that:

  • The impending move will negatively affect the child's life 
  • The relocation would make it hard for the non-custodial parent to get access to the child and maintain the parent-child bond

To prevent the custodial parent from up and leaving at a moment's notice, the non-custodial parent can factor relocation into the child custody agreement. They can put a time notice, e.g., that the custodial parent must inform them 60 days before the move. Alternatively, they can bar them from moving with the child out of state. If such arrangements are not in place, the non-custodial parent can take up the matter with the court.

One Parent Refuses to Follow the Custody Terms

A child custody agreement is a legal document that outlines the duties of each parent. Whether you arrived at it using alternative dispute resolution methods or litigation, it legally binds you. Therefore, if either of the parents breaches the contract terms, they can be held in contempt of the court.

Suppose the custodial or non-custodial parent has not adhered to the contract terms, the other party can bring the matter before the court. Examples include where the parent does not keep time, hides the child, or bars the other parent from enjoying their parental rights. While you may have a strong case, you need to present evidence to prove the infractions. It helps to engage an experienced family law attorney to help you present the facts in a way that shows that the child's welfare has suffered because of the breaches.

The Child's Needs Have Changed

Children's needs change as they grow, and the agreement must be flexible enough to accommodate this. Take the example of a child developing a physical disorder that requires them to have a constant aide. In such a scenario, one parent may feel more suited to care for the child. They can use this as grounds to petition the court for a custody modification.

However, the parent raising the issue must prove that the child's needs have changed, and the modification is in the child's best interests. They must also show that if the situation is not handled correctly, the child will suffer.

A Parent's Situation Has Changed

Parents also change and different seasons in their lives dictate how much they can provide for their children. Suppose the custodial parent develops a substance abuse problem. The non-custodial parent can use this as grounds to petition for a change in the custody arrangement. The argument, in this case, would be that leaving the child in such a home would be detrimental to their well-being. Modifications also work the other way around. For example, if the non-custodial parent can prove that they are now sober, hold on to a job and can provide a safe home for the child, they can request a modification.

The court is always willing to change the custody agreement if there is clear evidence that the change will benefit the child.

Agreement of Parents

As much as children are often the source of aggrievement in divorces, parents can sometimes put their differences aside for the children's good. For example, the custodial parent may want to involve the non-custodial parent more in the child's life. If both parents can agree on the change, they can petition the court to modify the agreement.

Additionally, the custodial parent may be facing a change that requires the non-custodial parent to chip in more time. It could be longer work shifts, less financial stability, temporary relocation, etc. These circumstances may prompt the parents to change the agreement. If the parents can agree on the change, the court will be more than happy to sign off on it. However, the court will still consider the best interests of the child.

The Child Is in Danger

While the court is not always guaranteed to act on other grounds for child custody modifications, child endangerment is always a pain point. If one parent can prove that the child's well-being is at risk in the hands of the other parent, the court will move fast. However, the parent raising the issue must prove that:

  • The child suffers abuse in the current home from the parent (verbal, physical, psychological, sexual, emotional, etc.)
  • The child is in danger of suffering abuse at the hands of other people other than the parent. This danger may result from the parent's unwillingness to protect the child or where the parent intentionally puts the child in harm's way.
  • The child is in an environment where the parent or someone in the home is abusing substances. Not only can this negatively influence a child's behavior, but it can also endanger their safety.
  • The parent or someone in the home has a serious mental problem that could harm the child. Examples include psychotic breaks and erratic behaviors.

The parent (plaintiff) bringing up the issue should first liaise with the police and child protection agencies to secure the child. The case can then ensue where the parent should provide sufficient evidence about the negative living standards in the home. If the court feels satisfied with the evidence, it can either bar the defendant from accessing the child or limit their visitation rights.

Following the Death of a Parent

Suppose the custodial parent passes on, the non-custodial parent must approach the court and ask for a custody modification. If the non-custodial parent can care for the child, the court often grants them custody. It is often seen as the option which will strain the child least. In some cases, however, the court may award custody to a third party where:

  • The non-custodial parent lives far from the custodial home and the child's surviving family members
  • The non-custodial parent cannot take full responsibility for the child (due to circumstances or choice)
  • The child wishes to remain with a third party

Unclear Reasons for Changing Custody

The court is clear on what constitutes a valid ground for child custody agreement modifications. However, a parent might petition for a change based on unclear grounds. Such a lawsuit takes up time and money and puts children in the middle of an unnecessary war. The children end up emotionally affected by the situation, and this can affect their overall well-being. Before taking up the matter with the court, parents should consider the validity of their arguments.

Don't Use Child Custody to "Get Back" at Your Spouse

There are two reasons why a parent can go to court for a child custody modification. One is where they feel that their child's well-being is in danger and want to protect their child. In this case, the parent is doing their work and letting objectivity lead the way. The second reason is when a parent wants to get back at their ex by putting children in the middle. Some people want to win by hook or crook and use subjectivity as their guide. Doing so only hurts you, the children, and your ex. By trying to hurt one person, everyone ends up scarred. Besides, the court will not modify an agreement based on dubious claims and will instead punish you for it.

Legal Support in Providing Necessary Modifications to Child Support Orders

Child custody agreements are legal documents and altering them requires you to understand the laws surrounding the modifications. To ensure that you continue to protect your children, please engage an experienced lawyer to walk you through the changes. They can also help you present evidence in a calm way that resonates with the judge.