A final custody determination can occur through either a stipulated order showing the parties’ clear intent that the order be final, or through a court order arising out of trial litigation or post-judgment proceedings. Yet, the term “final custody order” is somewhat misleading. Even after a final determination is made, the court retains the power to modify child custody, although it may only do so under certain conditions. This article describes the factors that a court will (and will not) consider as a proper basis for post-judgement modification of a final custody order.
Whereas a temporary custody order may be modified at any time so long as the proposed new arrangement is in the child’s best interest, a final custody order may not be modified unless a substantial change of circumstances has taken place since the order was entered. The purpose of this rule is to preserve the child’s need for continuity and stability in custody arrangements, unless a significant change in circumstances indicates that another arrangement would be in the child’s best interest.
For example, if one parent’s absence, relocation, or failure to comply with custody and visitation orders causes detriment to the child, this may amount to a substantial change of circumstances warranting modification. In extreme cases, conduct by the custodial parent that is designed to frustrate the child’s time and communication with the other parent (known as “parental alienation”) may also warrant modification.
Certain criminal or abusive behavior may call for special attention in modification proceedings. For example, if a parent with unsupervised visitation is required be registered as a sex offender as a result of a felony conviction where the victim was a minor, then the court may presume that there is significant risk to the child. Likewise, issuance of a restraining order against a parent based on domestic violence can support a modification request.
However, a mere change in “economic” circumstances generally cannot be considered by the court. If in fact the custodial parent’s financial resources are insufficient to provide proper care for the child, the proper remedy is an increased child support order, not modification of child custody.
Further, if a custodial parent develops a physical or mental disability, the court will not automatically modify custody. Rather, the court will carefully consider whether the disability is in fact connected to an inability to care for the child adequately.
Once the court is satisfied that there has been a substantial change of circumstances, the court will determine child custody and whether the new proposed custody arrangement is in the child’s best interest. At this stage, the factors that the court considers are typically no different from those considered during the initial custody determination, with one significant exception. In modification proceedings, assuming the child is of sufficient age and capacity, the court may accord the child’s preferences greater weight than they would be given in an initial custody proceeding. This is because, once the child has lived under a pre-existing custody arrangement, his or her past experience provides a more informed basis for the preference.
If you are considering a request for child custody modification, please call us today to consult with one of Bremer Whyte Family Law’s experienced family law attorneys.