Changing a Custody, Visitation or Child Support Order
Note: The modification instructions are written for uncontested cases (agreed or default). If your case is contested, it’s best to hire a lawyer or apply for help from your state's Attorney General Child Support Division or from the appropriate authority in your home state.
There are only limited circumstances in which a parent can modify a child custody or visitation order. Such a change will be made only if it is in the best interests of the child, and:
the child is at least 12 years old and has told the court in chambers that the child wants a change, or
the custodial parent has voluntarily given the child's care and custody to another person
the circumstances of the child or parent have materially and substantially changed since the original child custody order or agreement.
Material and Substantial Change
Family courts have recognized several situations that would qualify as a material and substantial change in the circumstances of a child or parent affected by a custody or visitation order. Examples include a parent's remarriage, a medical condition that adversely affects a parent's ability to function and work on a regular basis, a parent's criminal acts and convictions, or a parent's changes in a residence that make visitation a hardship for the other parent.
In any proceeding to determine parental rights, the court will interview children who are at least 12 years old, in chambers (the judge's private office, rather than in the courtroom). Younger children may also be interviewed. An older child who expresses a desire to live with the other parent doesn't have the last word, however. Even if a child asks the court to modify a child custody or visitation order, the court may do so only if that change is in the child's best interests.
Relinquishment of Custody
The court may also modify a custody order if the custodial parent has voluntarily given up the care and custody of the child to another person for at least six months. However, this provision doesn't apply if the custodial parent has only temporarily relinquished the care of the child during a period of military deployment, mobilization, or duty.
Timing of the Motion
A parent who files a motion to modify a child custody order within one year after that order was made must also submit an affidavit to the court. The affidavit must include at least one of the following allegations, along with the facts that support the parent's contention:
that the child's current environment may endanger the child's physical health or significantly impair the child's emotional development
that the custodial parent is seeking the modification, and the modification would be in the child's best interests, or
that the custodial parent has voluntarily relinquished the custody and care of the child, and the modification would be in the child's best interests.
Getting Legal Help
Unless the other parent fully agrees with your request to modify a child custody or visitation order, you should seek help from an experienced family lawyer. Often, these cases arise when the family's situation has changed considerably (for example, when a parent wants to move out of state with the child or a parent falls on hard times).
The outcome of the case could significantly affect your child's development -- and your right to remain close to your child -- for years to come. Given the high stakes, it makes sense to get some help to ensure the best possible outcome.
Ask a lawyer to help you determine if the court that made your order still has jurisdiction to change your order.
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