With a divorce, the trial court loses jurisdiction over property issues thirty (30) days after the final order is entered.1 It is a whole different story with children. The trial court has continuing jurisdiction over the children of the marriage until each child turns nineteen (19) years of age or is emancipated, whichever comes first.2 This jurisdiction covers child support, custody, parenting time, and all other matters related to the children of the marriage.3 Child custody may be modified if there is a substantial change in circumstances since the last custody order and the modification is in the children’s best interests. This blog explores the two (2) typical ways a non-custodial parent may gather sufficient evidence to present in court to obtain a modification of physical custody to the non-custodial parent.
Typically, a divorce court has a general expectation a non-custodial parent will not seek a modification of custody until at least one (1) year has passed. Within this timeframe, most courts view a modification petition filed by a non-custodial parent as an attempt to relitigate the last custody order. If the non-custodial parent was unhappy with the custody order, he or she should have appealed it to the Indiana Court of Appeals. Normally, no facts or insufficient facts exist within a year to seek a modification by a non-custodial parent. No evidence that occurred before the last custody order can be introduced into the evidence for any subsequent modification sought by the non-custodial parent, which is typically what the case when the non-custodial parent files a custody modification petition within one (1) year—he or she is trying to (impermissibly) reargue the case. This modification will most likely fail.
However, the statutes and case law covering modifications of custody are meant to be flexible, so they always allow the divorce court to modify custody under the relevant legal standard if it is in the best interests of the children. When could and would the court modify physical custody to the non-custodial parent within one (1) year? The most common factual situation to support a modification within one (1) year is a “smoking gun” event. Just one major issue arises as it relates to the children. As an example, a common situation where a non-custodial may seek and obtain a custody modification within one (1) year is where the custodial parent is arrested for some crime, such as drinking and driving, or found to have been neglectful of the children. In addition, if the custodial parent seeks to relocate a significant distance, the court may modify custody of the children to the non-custodial parent under the terms and burdens of proof contained in the relocation statutes.
After a year or more has passed, the court may modify custody because of any number of changes in the family dynamic. For instance, if a custodial parent constantly interferes with the non-custodial parent’s parenting time, knowing the non-custodial parent has a fundamental right to parent, it may modify custody. This harms the children’s relationship with the non-custodial parent. At times, this may be coupled with the custodial parent’s systematic attempt to alienate the children from the non-custodial parent’s custody. Relocation by the custodial parent, as noted, may also meet the burden to modify physical custody to the non-custodial parent.
Yet another time a non-custodial parent may successfully seek a modification in physical custody is when the child or children turn fourteen (14) years of age. In the controlling custody statute, a child’s wishes are given more weight by the court when the children pass this age threshold. The real question for the divorce court with a modification based on the child’s age is why they want to live with the other parent? Is it because the non-custodial parent would not parent as well and the children think they will have more relaxed rules? If so, the trial court is unlikely to find this constitutes a substantial change in circumstances. However, if a modification is based on the child wanting to live with the same-sex parent, the divorce court may give this more weight and find a substantial change in circumstances and modify custody to the non-custodial parent. The child’s age, maturity level, and reason for wanting to live with the other parent are what the divorce court analyzes. Ultimately, any set of facts that shows a substantial change in circumstances and it is in the best interests to modify physical custody may be brought to court to obtain a modification of custody from the custodial parent to the non-custodial parent.
In the final analysis, a non-custodial parent may successfully obtain a modification of custody if the facts evidence a substantial change in circumstances since the last custody order and it is in the child’s best interests to modify custody from the custodial parent to the non-custodial parent. The trial court can literally consider most any relevant evidence that reflects a substantial change in circumstances, so long as this evidence is in an admissible format and occurred after the last custody order of the court. This blog is written by attorneys at Dixon & Moseley, P.C. It is intended as general educational material. It is not intended as legal advice or a solicitation for services. It is an advertisement.