Modifying a Custody Order 145

After a divorce or paternity case has been resolved, the final judgment is generally non-modifiable. Two major exceptions exist to this general rule however. The family court retains jurisdiction to modify the child support order and the child custody order until the child reaches the age of majority or is otherwise emancipated. The court can modify these orders when it finds that a modification is in the child’s best interests.

Jurisdiction

For every determination of child custody (both for original orders and subsequent modifications), the court must find that it meets the jurisdictional requirements of the Federal Parental Kidnapping Prevention Act (FPKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). Both of these federal statutes help determine the proper forum for custody disputes if there is more than one state with an interest in the litigation.

Generally, the state that issued the initial custody order continues to have jurisdiction over that order for modification purposes. However, another state’s court might be allowed to modify the original order if neither the child nor a parent have a continued significant connection to the original state (i.e., they’ve moved away) or that state’s forum is more convenient that the original state’s forum for litigation.

Grounds For Modification Of Child Custody Orders

As noted above, the family court can modify an original custody and visitation order if it is in the best interests of the child. However, most state statutes require that the petitioning parent prove that a significant change of circumstances has occurred since the issuance of the original order such that the original order is no longer in the child’s best interests.

This requirement acts as a gatekeeper, theoretically prohibiting parties and courts from multiple custody modifications in the face of possibly trivial issues and supporting custodial stability. The courts of appeals rule that any custody modification without a showing of significant change in circumstances would be an abuse of discretion.

Commonly cited changes in circumstance include parent relocation, custodial interference or frustration, age of child, parent employment schedule change and, unfortunately, allegations of lack of fitness to appropriately parent. In the event that the moving parent alleges a threat to the child’s physical or emotional well-being, the court may appoint a guardian ad litem to investigate and represent the child in the proceedings.

Once the moving parent proves a significant and continuing change in circumstances, the court must still decide what is in the best interest of the child. The court will consider what is best for the child’s health, safety and welfare with a preference for regular (and frequent) contact with both parents.

Parental Relocation

main article: parental relocation

If the non-custodial parent relocates to a distance which precludes the practical exercise of original parenting plan, he or she may ask the court to modify the parenting schedule to accommodate longer (though less frequent) visits. Mid-week overnights or even regular weekends may no longer be feasible if the non-custodial parent moves far enough away. The court may order increased spring or summer vacation time instead.

If the custodial parent decides to relocate, he or she must receive consent from the non-custodial parent or approval by the court. Either situation will likely warrant a modification of the custody and visitation order. The court will again consider increasing vacation time visitation and may even order the custodial parent to  bear the child’s travel costs. [read more…]

Custodial Interference

main article: custodial interference

In some high-conflict cases, one parent may behave in such a manner towards the other that custody, visitation and communication with the child is severely impeded. This frustration of the other parent’s rights may provide adequate grounds for a change in custody. As noted above, the court gives preference to a parenting schedule which allows both parents regular and frequent contact with the child. From the court’s perspective, if one party denies the other those rights, it is ultimately the child who suffers. Therefore, it may be in the child’s best interest to modify the original custody order. [read more…]

Child’s Preference

As children get older, they often offer their own opinion and preference as to which parent they might like to reside. In no state does the court allow the child to choose. The final determination of custody (original or modified) always lies with the court – based on the best interest of the child.

However, most states have rules which establish an age at which the court is required to consider the child’s preferences. In some states, that age is designated specifically. In others, the court must determine if the child is of sufficient age and capacity to form an intelligent opinion.

Effect of Custody Modification on Child Support

In some instances, a modification of custody and visitation will necessitate the modification of the child support order as well. Clearly, if primary physical custody is changed from one parent to the other, the newly-designated custodial parent will now receive child support. If visitation is substantially increased or decreased, that change may require an adjustment to child support as well, depending on the child support calculations of each specific state.

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