After a couple has lived through the emotional turmoil of a divorce, the entry of the final judgement and decree may seem final, the absolute end of the strife and worry. Unfortunately, life rarely proceeds as we expect it to. Unanticipated events, such as a sudden illness, a new job, moving to another state or some other life altering happening, can disrupt even the best plans for the future. In such cases, divorced parents often want to revise some of the terms of their divorce. A common question in such cases is “Can I modify the child custody and visitation order?” The answer is “Not always,” but most judges are open to reasonable requests based upon an unexpected change in circumstances.
The necessity of making a motion
Most attempts to modify custody orders must begin with a motion brought before the judge who originally decided the case. If that is not possible – for example – both parents may have moved since the divorce became final – the motion can be brought before a judge in the state where the divorce was granted. If the parties can agree on the change, the court will most likely grant the request without a lengthy hearing.
What if the parties disagree?
If one party disagrees with the request for modification, the court will require the parties to present evidence, usually in the form of oral testimony. The party requesting the modification must present evidence of a substantial change in circumstance. Such a change may include a job change that requires one of the parents to relocate. Other changes may include evidence of child abuse, conviction of a crime, or excessive drug use. As with most issues involving minor children, the requested change of custody must serve the child’s best interests.
Many requests to modify a child custody order involve complex legal issues such as the jurisdiction of the court and whether expert testimony is required. Therefore, anyone contemplating a request for modification of a child custody order should consult an experienced divorce attorney for an evaluation of the evidence and an opinion regarding the likely outcome.