Whether the case is concerning an original custody order or a custody modification, courts in every state are primarily concerned with what is in the best interests of the child. Even where the circumstances of a case have significantly changed, a court will only modify a custody order if it is in the best interests of the child. However, state law governs child custody issues and the particular factors up for consideration, time frame and process for requesting custody will vary by state.
Best Interests Standard
While the specific factors may vary, every state considers the best interests of the child when deciding whether or not to modify a custody arrangement. For example, 13 states, including Connecticut, Massachusetts and Oregon, require courts to consider the emotional ties between children, parents and other family members. Other common "best interest" factors include the ability of each parent to take care of the child, mental and physical health of children and parents, and any incidents of domestic violence. Nearly half of all states, including New York and California, presume it is in the child's best interest to remain in the same home where he currently lives.
Process for Modification
Once a custody order is in place, either parent may file a motion with the court to request a change in the custody order. Typically, the same court that ordered the original custody arrangement is responsible for changing the order. If parents agree to a modification, generally the parents simply file the agreement with the court. However, if parents do not agree, the court will usually schedule a hearing where the parent requesting the change will present evidence of the change in circumstances and why a change in custody is in the best interests of the child.
Substantial Change of Circumstances
A court may grant a custody modification if the circumstances have substantially changed since the time the original order was in place. Generally, the changes may concern either the parent or the child, and the court will only grant a modification if neither the parents nor the court knew about the changes at the time of the original order. Examples of a substantial change of circumstances may include use of illegal drugs, child abuse or a felony conviction. If the needs of the child change, such as changing needs in schooling or medical attention, courts may also consider modifying custody.
While parents often seek a custody modification when one parent becomes unfit to take care of the child, a parent may also request a change in custody when his circumstances have improved. Sometimes, the court will originally deny a parent custody due to circumstances that were not in the best interests of the child, such as not having a job or the financial resources to provide a safe home for the child. If the parent's circumstances substantially change -- by securing employment, for example -- the court may modify the custody arrangement.
Some states require parents to wait a specific period of time before requesting a change in custody and restrict how often parents may request modifications. For example, Delaware courts do not let parents modify custody more frequently than once every two years, unless the child's physical health is in danger or emotional development is significantly impaired.
- Child Welfare Information Gateway: Determining the Best Interests of the Child: Summary of State Laws
- Separated Parenting Access and Resource Center: Defining "Substantial Change In Circumstances"
- Clark County Courts: Explanation of a Motion to Modify an Existing Order
- Oklahoma Bar Association: Oklahoma Child Custody: A Primer
- Washington University Law Review: Child Custody Modification Under the Uniform Marriage and Divorce Act: A Statute to End the Tug-of-War?
- Delaware Code: Subchapter II. Custody Proceedings
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