Perhaps everyone who reads this blog will agree that routine and “sameness” are considered aspects of our daily life. The old adage, “change is hard”, best captures this concept. The same is true for children of divorce and paternity cases. The initial determination of which parent should have custody is “gender neutral” and gives no parent a preference for preliminary custody in the trial court’s initial determination.
However, after the case is decided, where custody may change, the children usually establish a custodial routine on who they stay with and when. Any changes or disruptions to the schedule are significant for the children who are already pulled between two parents. Thus, in physical custody modification cases, the parent seeking to modify custody must show a substantial change in circumstances, and that the modification of physical custody (i.e. time they spend with each parent) is in the children’s best interests.1
This blog explores how a custodial parent defends against modification in the four most common scenarios. Much of this analysis applies to the non-custodial parents who seek to modify physical custody as well—the court’s focus in on the children and stability. The modification must be in the children’s best interests. This blog specifically explores four reasons a non-custodial parent may seek to modify physical custody; these standing alone or undeveloped, however, are normally legally insufficient to show a substantial chance for modification.
The ultimate takeaway from this blog is a very detailed factual analysis must be made of any petition to modify filed by a mon-custodial parent to determine if it focuses on the non-custodial parent or a substantial change to warrant modification in the best interests of the children. Most of the time in the four circumstances next analyzed, a mere change (or set of changes) in the daily lives of the custodial parent and/or children is not sufficient to modify custody.
First, one common basis a non-custodial parent may file a petition to modify custody is because the child “enjoys” his or her time more in the care and custody of the non-custodial parent during parenting time. Thus, as the argument goes for modification, the non-custodial parent has shown a substantial change in circumstances to modify custody. Not so fast.
Through a variety of legal tools, such as a custody evaluation and depositions, it may be evidenced the non-custodial parent is equating more liberal rules or lack of discipline, and the children “liking” this environment, with a substantial change and basis for modification. Through counsel, it may be demonstrated that more lax rules and satisfaction of the children are not what is in their best interests in the long-term. A child needs a parent to have an authoritative role for life preparation more than a friend. Is this your case?
Secondly, a significant myth exists among parents who believe that when a child turns fourteen years old, he or she may pick which parent he or she wants to live with. Thus, if a child wants to live with the other parent—be in his or her custody—when he or she turns fourteen, this is the valid basis for modification. This is not the case.
In reality, this is one of a myriad of factors the trial court must consider in determining if there has been a substantial change in circumstances to modify custody in the children’s best interests. This factor is generally aimed at the notion that as a child matures with age, he or she should have some ability to weigh in on which parent he or she wants to live with (physical custody). However, even an older child may make a poor decision and have unsound reasoning. Which is it, age or maturity?
Third and closely related to age is where a same-sex child wants to live with the parent of the same sex as he or she matures. This alone may not be in the child’s best interests depending on the factual context; this is where you with counsel build your defense to modification, which is the non-custodial parent’s burden at trial. The question is the actual “why” the child of advanced aged wants to live with a same-sex parent.
The fourth and final perceived significant legal and factual changer where a non-custodial parent may seek to modify custody is when his or her life has changed in a significant way. In this case, with skilled counsel and proper pretrial preparation defending against modification, it is often able to be established that basis for modification has little-to-nothing to do with what is in the children’s best interests.
While it is great for the children that the non-custodial parent has become sober or remarried and become more stable and better able to be a custodial parent, this is insufficient in most cases to show a substantial change and modification is in the children’s best interests. In other words, it is not enough that the non-custodial parent is able to provide even a better lifestyle for the children because of his/her changes in life: The change for the children in routine and other disruptions to a stable custody and parenting time situation may be such that it may not be in the children’s best interest to modify.
Ultimately, the non-custodial parent who seeks to modify custody has the burden to show a substantial change and modification is in the children’s best interests. A custodial parent who properly prepares for trial based on these four common bases for a modification petition is in a strong trial position to have modification denied as it is not in the children’s best interests. The way this is determined and presented at trial is by a variety of legal tools that when, and if, utilized by the custodial parent, some of which—such as a custody evaluation—are enumerated in this blog.
Dixon & Moseley, P.C. advocates handle defending against custody modification cases throughout the state. This blog is written for general informational purposes; it is not a solicitation for legal services or specific legal advice. It is an advertisement.