When custody determinations are initially made, they generally are determined based on what is in the children’s best interests. That is the standard that is followed in almost every state. Additionally, many states specifically set out in their statutes specific factors that must be considered when changing custody.

Even after custody has been determined, changing circumstances often result in changing schedules and even changes to the custody arrangement. As a result, courts have the power to modify child custody arrangements and child support to meet the changing needs of the parties and the children.

CUSTODY CHANGES BY AGREEMENT

Often custody changes can be accomplished without appearing in Court so long as the parents agree to the change. However, it is very important to memorialize any agreements made as a court order by submitting a stipulation and order to the court asking for the Judge’s approval of the arrangement. Agreements that are not memorialized as part of a Court order are generally unenforceable.

When the parents are unable to agree on custody changes, the issue can be submitted to the Court. Most states, however, first require the parents to try to mediate their dispute in order to settle their issue out of court before proceeding to a contested hearing on the issue.

CONTESTED CUSTODY CHANGES

To seek a change of custody, a Motion must be filed along with an affidavit (a sworn statement) supporting that position.

If the matter does proceed to court, it is important to understand the standard that the Court will apply when deciding whether to modify the existing custody arrangement. Different standards apply in different states. However, there are two common elements. In almost all jurisdictions:

1. a parent seeking to change custody through the court usually must show that the conditions have changed substantially since the last custody order;

2. Additionally, it is generally presumed that the court should retain the current custody arrangement unless the party seeking the change custody demonstrates that it has met the statutory criteria by a preponderance of the evidence.

This is where state laws diverge into three general standards that are applied in different states.

ENDANGERMENT STANDARD

In a minority of states, once custody has been determined, it is very difficult to change. To do so, the party seeking the change must file a motion supported by evidence that the children are endangered physically, psychologically or developmentally in their current situation. Courts must also find that the benefit of the change outweighs any harm that would occur by the change. Obviously, this burden is very high and requires that the moving party have a significant amount of new evidence since the last custody order was entered to support their case. Any incidents or information predating the previous custody order is largely irrelevant unless it can be tied into a pattern related to more recent conduct.

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