Custody. The word carries many positive and negative feelings among divorced parents. It is not uncommon for parents to continue fighting about their children long after the divorce is in the rear view mirror. Unfortunately, many forget that their children are watching the disputes and internalizing the negativity. The non-custodial parent can feel as though he or she is at the mercy of the custodial parent leading to anger and resentment. Often, the parents need to simply grow up and learn how to work together for the benefit of the children. However, there are times when the custody and/or parenting time arrangement needs to be overhauled for any number of reasons.
Modification of custody and parenting time is typically difficult. It is unlikely the custodial parent is going to simply agree to a modification, making it more likely that a judge will be called up to make a decision through a mechanism called a motion. The parent seeking to modify custody has the burden of establishing a change in circumstances that affects the welfare of the child or children. It is not enough to allege the other parent is not cooperating; you must establish to a judge that the lack of cooperation or some other circumstance is adversely impacting the child or children making a change in custody necessary.
The hallmark of custody and parenting time determinations is what is in the best interest of the child. In short, this means that the needs of the parents are irrelevant and the court is singularly focused on what arrangement is best for the child. When you seek to modify custody, you run up against an arrangement that was previously found to be in the best interest of the child or children. For this reason, the hurdle to convince a judge that there is a sufficient change in circumstances such that custody and/or parenting time needs to be reopened is quite high.
Making it even more difficult is that once you have made a showing of changed circumstances, the court must ordinarily schedule a plenary hearing (i.e., a mini-Trial) to determine if a change to custody or parenting time is in the best interest of the child. There might be psychologist involvement and countless thousands of dollars in legal fees, only to get to an uncertain resolution. We were reminded by an appellate case recently that a judge’s decision on modification of custody is subject to reversal if there are material facts in dispute and a hearing is not held.
You can modify custody and parenting time. However, as discussed in today’s blog, the burden is high. Judges do not like to reopen custody and parenting time. You need to ensure the change in circumstances you have will lead to a good result for you, otherwise you are simply flushing good money down the drain. We are here to help analyze your case and give you an honest assessment of the chances you can make a showing of a change in circumstances. We are not going to tell you what you want to here; we are going to tell you what you need to know.
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