Parents going through a divorce must either negotiate or litigate parenting time and custody arrangements. While the hope and goal is always to work cooperatively to determine custody and parenting time, i.e. parental rights and responsibilities, not all parties are able to reach common ground. Through amicable resolution, parties establish their own schedule with the children, which may have particular details and built-in exceptions or defaults for times they cannot agree, and then ask the courts to approve those arrangements.
The courts must approve (order) all family law terms in order for the agreement to be valid and enforceable. Other times, parents cannot agree on how to share their responsibilities. Instead, they litigate in family court, and a judge sets the terms for custody and parenting time. While judges strive to properly allocate both parenting time and decision-making rights based on the children’s best interests, the decision is ultimately determined by the judge’s understanding of the family dynamics and needs based on minimal evidence overall.
Parents generally have an obligation to work with one another to uphold the terms of their custody and parenting time orders. However, as family circumstances evolve after a divorce, the parents may need to make adjustments to their scheduled parenting time or how they handle decisions for their children. Neither party should take modifications unilaterally into her/his own hands but should (must) instead file a motion to modify.
Parents may find themselves arguing in a way that is damaging to their co-parenting relationship and stressful for their children. If current parenting arrangements for a family have become a source of conflict, then it is likely time to pursue a formal modification of parenting time and/or custody.
What is a custody modification?
A custody modification is a change to the established legal and/or physical custody terms as ordered by the court initially or prior modification. The courts review the order and update it, primarily based on the child’s best interests, to better accommodate the changed family circumstances. When requesting a modification, a party needs sufficient evidence showing that circumstances have not only substantially changed, but also a modification is in the best interests of the child.
Remarriage, job changes, relocations, school transfers, life changes of the parties and/or children, relationships between the parties and/or children or third-parties, medical and/or mental health and more all create situations in which the current custody or parenting arrangements cease to work well or at all. Parents have the ability to make minor adjustments on a case-by-case basis as situations arise but often require significant modifications.
However, any adjustment is a platform for conflict. When parents have to regularly communicate about changing the parenting schedule or other matters, then it may be time to modify the prior orders. Parents can cooperate during the modification process and are often required to mediate before proceeding to court on any modification of parenting time or custody (and often modifications of custody or parenting time result in changes to child support). They can also litigate if they cannot agree on the best way to update their custody or parenting time terms.
Reviewing family circumstances and dynamics and a current custody/parenting time order with a skilled legal team is a good starting place for those who believe they may need to request a custody modification. Parents who ask for reasonable adjustments and who base their claims on the needs of their children have the best chance possible of obtaining a meaningful modification.