Do I Have Enough Evidence to Modify Child Custody?

The only constant is change. This axiom is especially true when you are dealing with children, as they are constantly growing and changing. As they change, the visitation and custody order that parents have in place may no longer be workable for a variety of reasons ranging from school schedules to extracurricular activities to relocation of one of the parents. When a parenting order is no longer working, one parent may desire to modify the order to better fit the current state of the parties and the child. In order to do this, New Jersey law requires that the requesting parent prove a material change of circumstances in order to modify the parenting order currently in effect. Without being able to prove this material and substantial change that has occurred since the entry of the last custody order, a parent will not be able to have the parenting order modified. Accordingly, it is a common issue for a parent to ask whether he or she has enough evidence to modify a parenting plan.

First, you should ask whether the evidence you have indicates a permanent change in circumstances. Are you wanting to change the schedule just because your child’s soccer season this year is inconvenient for your drop off and pick up times, or do these times seriously interfere with the child’s school schedule that will be in place for many years to come? In the case of the former, this evidence would probably be insufficient to prove a change of circumstances, while in the latter, a judged may think so.

Second, you need to determine whether your evidence supports an unanticipated change of circumstances. If, for example, you knew that your work schedule was going to change soon to make it difficult for you to get to the pick-up point on time, that may not be sufficient to show a material change. Courts want to encourage people to think through different scenarios before entering an order, so if you knew a change was going to occur but failed to account for it, your evidence concerning that change in particular may not be persuasive.

Finally, does your evidence actually impact the child in such a way that modification is necessary? Your former spouse remarrying could potentially be a material change if, for example, the new spouse is not an appropriate person to be around the child. However, if the new spouse has been around the child for years and the child gets along with the spouse, the change may not be material such that the child’s best interest is actually impacted by the change.

Modification of child custody orders can be complicated. We have helped many clients with these types of cases and to help amass the appropriate types of evidence to obtain a favorable outcome. Call us today at (732) 529-6937 to talk about your case.  Please also check out our YouTube channel for other FAQs about divorce topics like this one.
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