Custody is initially determined by the courts in divorce or paternity by considering statutory factors, including the age of the child, his/her adjustment to their home, school, community, and the mental and physical health of all individuals involved.1 In this situation, there is no preference for either parent.
Psychologically and socially, children need stability so custody is not as easy to modify. However, custody can be modified by a court upon a showing of substantial change in the initial custody factors, and that a modification would be in the child’s best interests.2 There are numerous reasons why parents seek to modify custody. However, there are five common legal “triggers” that often lead to filings for modification of custody and parenting time and the real potential it will occur. Know these to be aware of your legal rights and the associated risks:
Relocation. Times change, jobs change and these often lead to relocation. New romances spark. About anything can result in a parent wanting or needing to move. However, parents seeking to relocate must file a notice with the Court of the proposed relocation. By statute, the non-relocating parent is given the opportunity to object.3 Relocation itself can be considered as a factor to modify custody.4 If there is a significant distance involved or parenting time is likely to be impacted by the relocation, the non-relocating parent often files an objection to proposed relocation and/or motion to modify custody as a result of the relocation. So if either party is planning on moving, this may well be a trigger to a custody modification proceeding.
Addiction. By statute, the mental and physical health of everyone involved is relevant to custody of minor children. It is no secret there is an opioid crisis in Indiana stemming for addition to prescription drugs, as well as serious abuse of other illegal drugs and this impacts mothers and fathers. Unfortunately, there is a current epidemic of drug use and abuse, including but not limited to methamphetamine and heroin. If a parent, person residing with a parent, or other person is addicted to drugs it can negatively impact the child(ren). Again, the best interests of the children are paramount in custody modification, and the safety of the children is often in question when addiction is involved-both mentally and physically.
Remarriage: Oftentimes, introducing a new significant other or spouse into the familial unit can create waves and may even lead to filing to modify custody. If a significant other has a criminal record, addiction issue, or is somehow a potential danger to the child, the other parent may seek to modify custody. However, generally remarriage, on its own, may not be a basis for modification of custody without a substantial change in circumstances, which can lead to modification in the best interests of the child(ren) necessary.
Modification of Child Support: Child support may be modified upon a showing of a substantial and continuing change in circumstances or a 20% change in the amount to be paid and at least twelve (12) months since the last child support order.5 Oftentimes, when a parent files to modify child support because overnight parenting time and custody can greatly impact child support obligation amounts, custody can become an issue as well, as both custody and child support are directly related.
Parenting Time Interference/Disagreements: It is to be expected, to some degree, that not all co-parents are able to work together without any issues in the best interests of the child. However, there are some cases in which animosity and interference are taken to the extreme. For example, a parent who makes multiple, unsubstantiated calls to DCS and the police to avoid parenting time exchanges and deny parenting time may make the circumstances so dire that a change of custody may be filed to preserve the relationship between the parent and child. While day-to-day disagreements are not uncommon, the inability to co-parent or make decisions in the best interests of the children may lead one parent to move to modify custody-either legal, physical, or both.
When issues become so serious that modification of custody may be necessary, it may be helpful to seek the assistance of an attorney to help navigate through the process. Dixon & Moseley, P.C. attorneys practice throughout the State of Indiana and understand the significance of custody modification and planning for the same. This blog post is written by Dixon & Moseley, P.C. advocates and is not intended as specific legal advice or a solicitation for services. It is an advertisement.