After a final decree of divorce or other order establishing custody and/or visitation is filed with a court, it is not always the last word on custody. If a father wants to change an existing, he may file a motion requesting the court modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a “substantial change in circumstances” that affects the welfare of a child.
What is a substantial change in circumstances?
Courts differ on what they consider a substantial change. However, below are a number of examples that could be considered substantial changes leading to a change in the previous order. This list not exhaustive, but these are some examples:
Geographic move. If a custodial parent intends to make a significant geographic move, it may constitute a changed circumstance that would cause a court to modify a custody or visitation order.
In that situation some courts switch custody from one parent to the other. Most judges, however, ask the parents to work out a plan under which both parents may continue to have significant contact with their children. The Court will carefully examine the best interests of the child and make a decision about which parent should have custody.
In Missouri, if a custody order has been entered, in the event one parent intends to relocate their residence, they must provide written notice to the other parent that meets certain statutory requirements prior to their move. If the parent moving fails to provide this notice prior to their move, they may be ordered to return the children to the state (if they have moved out of state), or they may jeopardize their custodial rights under the previous order.
Change in lifestyle. A parent can obtain a change in a custody or visitation order if substantial changes in the other parent’s lifestyle threaten or harm the child. For example, if a custodial parent begins leaving a young child unsupervised or fails to get the child appropriate medical treatment, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or only under the watch of a court appointed supervisor)
The Child’s desires. Older more mature children can have some input in deciding with which parent he or she will live with primarily. However, although that child’s wishes can be considered, the child does not have a right to ultimately “choose” which parent to live with. It is also ill advised to encourage a child to request a change in custody as oftentimes the court will view this as placing undue pressure on the child. This behavior will reflect badly on the parent pressuring/encouraging the child and could affect that parent’s custody and visitation rights.
Deviation from custody schedule. In some cases, the parties may have deviated from the custody order to such an extent, and for a long enough time, that a modification may become possible to simply make legitimate what the parties have been doing. For example, if one party received sole custody, but the parties have been in reality exercising fifty-fifty custody for a long enough period of time, a court may entertain a modification to formalize what the parties have been doing.
There are many other possible scenarios in which a modification to a custody schedule may be viable. Thus, if you are a father and think that a change of custody is necessary, you should check with a family law attorney in your state.