How to Modify Child Custody
Custody, both legal (decision making) and physical (where the child resides), and visitation can be modified. In order to modify an existing court order, the parent wishing to modify must first prove that there has been a “material change in circumstances” – which means that there must be a significant change that has occurred resulting in the current court order no longer being in the best interest of the minor child. A modification is not a “do-over” of an existing custody decision. If you are unhappy with the court’s decision, or you entered into a consent order and changed your mind, these are not material changes. If, and only if, a material change of circumstances has been proven, only then can the court look to the best interest of the child.
This is an extremely high bar, and for that reason, it can be difficult to modify an existing court decision. It is tempting to want to analyze what is in the child’s best interest first, but under the law, the courts must first determine that there has been a material change in circumstances. Just because there has been a material change in circumstances does not mean that the court will definitely modify the order. It just means that the court can change the order if it is in the best interest of the child.
Sometimes both parents want to modify the child custody decision. If both parents come to an agreement which resolves the issue (either through counsel, at mediation, or at a settlement conference), and they choose to modify the existing order, the court still has the final say of whether or not the agreement is in the child’s best interest.
What the Court Considers When Determining Modification
First, the court considers a “material change in circumstances”. A material change in circumstances is anything that occurs that makes it so following the current court order is no longer in the child’s best interest. This could be relocation or a change in one of the parent’s employment which impacts the child custody schedule. There is no “list” of what constitutes a “material change” because each determination is done on a case by case basis, and whether a certain change is material to one child may not be material to another.
The court also considers the best interest of the child. If the court finds that there has been a material change in circumstances since the entry of the last court Order, then they will move on to consider the best interest of the child. There are a variety of factors the court considers when deciding what custodial arrangement is in the best interest of the child. These factors include, but are not limited to:
Willingness of the parents to share custody
Preference of the child
Potential disruption of child’s social and school life
Sincerity of parents’ request
Demands of parental employment
The Steps to Obtain a Modification
The steps in the modification process are as follows:
First, you must file a Petition/Motion to Modify with the court.
All contested custody cases, with a few exceptions, are required to be mediated with the court. This is the court giving parties a chance to resolve the issue on their own, and not have to have the court decide your child’s future.
The parties will also most likely be ordered to attend Parenting Classes with the court, and, depending on the jurisdiction, children may be ordered to attend a class.
Parties may be given another opportunity to resolve the issue themselves by attending a court ordered Settlement Conference.
Finally, if the case does not resolve, the case will go to trial, where the parties put on their arguments as to why an order should, or should not, be modified.
The Court does not make it easy to modify child custody decisions because routines are important to children, and if the parents keep changing a custody order, the child will never get settled. Also, the court recognizes that settling into a routine takes time. Stability, not change, is in the child’s best interest.
If you need help modifying an existing custody order, please contact Wasserman Family Law at 410-842-1070 or laurie@wassermanlawoffice.com. We practice in jurisdictions throughout the State of Maryland.