Reasons for a Child Custody Modification
There are three primary situations in which the Court can modify a child custody order:
- One parent has relinquished the child to the other for six months or more
- The child files a written request to live with the other parent once they reach a certain age
- There has been a material and substantial change in circumstances warranting modification of the underlying order.
Typically, in custody modification cases, the last option is the most commonly used and can encompass a variety of situations. These situations can range from a change is residence or change in work schedule to a criminal proceeding involving one of the parents. Since each case and set of circumstances are very different, it is important to meet with an experienced family law attorney to determine if a modification of the order is warranted.
Is the Current Situation Adequate?
Even if there has been a material and substantial change, if the court believes that the current situation for the child is adequate and in their best interest, they will be hesitant to make changes to the original custody agreement.
Unless there is proof of circumstances in which the child may be in danger of either physical or emotional harm, most courts prefer the child stays in the current situation for the sake of stability and consistency.
However, it does not necessarily need to be an extreme scenario in which the child is subject to harm. For example, if a parent currently has sole custody of a child, but is planning to move out of the state for a new job, the other parent may petition the court for a modification in custody.
The non-custodial parent may cite that the child will be losing the stability of his or her current life, friends, school, and other aspects of his or her living situation. In a case such as this, the court may agree that this is a significant change in the quality of the child’s living situation. However, this is not always the case.
Does the child have a say in who gets custody?
If the child is 12 years of age or older, he or she is legally allowed to speak to the Judge regarding his or her preference regarding which parent has the right to designate his or her primary residence and/or custody.
However, the child’s preference is not binding on the judge and the judge will still have to determine what is in the child’s best interest.
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