When custody determinations
are initially made, they generally are determined based on what is in
the children’s best interests. That is the standard that is followed in
almost every state. Additionally, many states specifically set out in
their statutes specific factors that must be considered when changing
Even after custody has been
determined, changing circumstances often result in changing schedules
and even changes to the custody arrangement. As a result, courts have
the power to modify child custody arrangements and child support to meet
the changing needs of the parties and the children.
CUSTODY CHANGES BY AGREEMENT
Often custody changes can be
accomplished without appearing in Court so long as the parents agree to
the change. However, it is very important to memorialize any agreements
made as a court order by submitting a stipulation and order to the court
asking for the Judge’s approval of the arrangement. Agreements that are
not memorialized as part of a Court order are generally unenforceable.
When the parents are unable
to agree on custody changes, the issue can be submitted to the Court.
Most states, however, first require the parents to try to mediate their
dispute in order to settle their issue out of court before proceeding to
a contested hearing on the issue.
CONTESTED CUSTODY CHANGES
To seek a change of custody,
a Motion must be filed along with an affidavit (a sworn statement)
supporting that position.
If the matter does proceed
to court, it is important to understand the standard that the Court will
apply when deciding whether to modify the existing custody
arrangement. Different standards apply in different states. However,
there are two common elements. In almost all jurisdictions:
a parent seeking to change custody through the court usually must
show that the conditions have changed substantially since the last
Additionally, it is generally presumed that the court should
retain the current custody arrangement unless the party seeking the
change custody demonstrates that it has met the statutory criteria by a
preponderance of the evidence.
This is where state laws
diverge into three general standards that are applied in different
In a minority of states,
once custody has been determined, it is very difficult to change. To do
so, the party seeking the change must file a motion supported by
evidence that the children are endangered physically, psychologically or
developmentally in their current situation. Courts must also find that
the benefit of the change outweighs any harm that would occur by the
change. Obviously, this burden is very high and requires that the
moving party have a significant amount of new evidence since the last
custody order was entered to support their case. Any incidents or
information predating the previous custody order is largely irrelevant
unless it can be tied into a pattern related to more recent conduct.
Some evidence supporting
endangerment claims may include:
Police Reports. Police reports showing numerous
disturbances at the custodial parents home can be a sign of instability
and may support a change of custody. This is particularly true if the
children were present at the time of the disturbances
Criminal offenses that endanger the children or that leave them without
supervision can also be used as powerful evidence in any motion to
Child Protection Reports. Reports of abuse or
neglect relates specifically to the care of the children and are often
the strongest possible evidence for a change of custody where the
negligence or abuse has been substantiated.
School Records. School records showing significant
absenteeism, behavior problems or falling grades cans support claims of
instability ion the child’s custodial home.
Counseling Records. Counseling or psychological
records may reveal problems in the home that lead to symptoms of poor
socialization, development or depression issues.
Medical records related to injuries may point to a general lack of care
and attention by a custodial parent.
BEST INTERESTS STANDARD
A majority of states use a
“best interests of the child” standard when determining whether
to modify existing custody arrangements. That means the Courts will
look at all circumstances affecting the child and determine whether a
change of custody is in the child’s best interests. Even under this
standard there is generally a presumption to retain the current
custodial arrangement. When applying this standard, the Court is often
guided by specific factors to consider set out in the family law code.
Some factors may include:
The wishes of each of the parents;
physical and psychological capacity of each parent to provide care for
desires of any child who is of a suitable age and maturity to express a
residential and employment stability of each parent;
there have been any incidents of neglect or abuse;
parents past history of providing care for the child which is often
referred to as determining the child’s primary caretaker.
child’s relationship with siblings or other in home family members
including potential second family members.
ability of the parents to communicate and cooperate on child rearing
parent’s willingness to facilitate and encourage the child’s
relationship with the other parent.
10. The child's adjustment to home,
school, and community;
11. The length of time the child has lived
in a stable, satisfactory environment and the desirability of
One of the most common
questions asked is when a child can decide where they will live. In
almost all states, the child’s wishes are only one factor out of many
and are never dispositive with regard to the issue. However, as each
child matures, their wishes will carry greater weight in contested
custody proceedings. There is also one notable exception to the rule.
In the State of Georgia, it is presumed that a child age fourteen (14)
or older can decide where they will reside. Even that presumption,
however, may be rebutted with contrary evidence.
In order to discourage
parents from constantly litigating custody, some states use a hybrid
approach which makes it more difficult to change custody shortly after a
custody order has been entered. In such states for a certain period of
time after a custody order has been entered (generally one or two
years), any motion for a modification must show not only a change of
circumstances, but also that the child is endangered by the child’s
current environment. After expiration of the one-or two year period,
the standard is reduced to a review of what is in the child’s best
If a Court hears a motion
for a change of custody and believes as a result that there may be a
basis for the change, it may require a custody evaluation performed.
How each parent presents their issues in the custody evaluation can be a
critical part of the cases success or failure.
for custody evaluations.