Post-Decree Modification of Child Custody
A court is guided by one principle when deciding the issue of child custody.
That principle is the best interest of the child. The best interest of the child
is determined by examining the child's relationship with the parents and
important family members, the child's health and social development, and the
child's general well-being.
Many experts believe that the best interest of the child requires that one
parent have sole custody, subject to the reasonable visitation rights of the
noncustodial parent. Other experts believe that it is in the child's best
interests to be in the custody of both parents, jointly, to better maintain a
good and healthy relationship with each parent. Most courts seem to favor sole
custody with visitation rights to the noncustodial parent. However, regardless
of the type of custody awarded, a court retains jurisdiction to review the
custody award at any time in order to advance the child's best interests.
Waiting Period and a Change in Circumstances
Many state laws do not permit a change in custody until after a certain time
period has elapsed since the entry of the original custody order. The theory is
that the initial period of custody should be protected while all parties
re-establish their new lives. Most state laws provide an exception to the
waiting period when there is a showing that the child's present environment
would seriously endanger his mental, physical, moral, or emotional health.
Courts will not modify or change custody unless there has been a substantial
change in circumstances that materially affects the best interest of the child.
Agreed Change of Custody
Both the custodial parent and the noncustodial parent may petition the court
for a change of custody. If the parties agree to change custody, a court will
review the proposed change and the reasons behind it. If the proposed change
advances the child's best interest, the court will most likely approve the
Each state's laws set out the standards that a petitioner must meet in order
to be entitled to a change of custody. Generally, a change of custody may be
awarded if events that occurred after the entry of the custody award show that
there was a change in the circumstances of the child or his custodian and that
modification is necessary to advance the child's best interest. Examples of a
changes in circumstances might include evidence that the custodial parent cannot
provide adequate supervision for the child, the custodial parent has effectively
given up control of the child by allowing the noncustodial parent to make all
decisions that affect child, or the child's current environment presents a
danger. A joint custody award may be changed to a sole custody award under the
same standards. In all cases, the court's finding as to the change in
circumstances must be accompanied by a finding that a change in custody would
alleviate problems identified.
Attorney's fees may be assessed against a person who petitions for
modification if a court finds that the modification proceeding was vexatious and
was brought for purposes of harassment.
Copyright 2012 LexisNexis, a division of Reed