If your current child custody arrangement no longer works for you, you may need to request a child custody modification in court. However, it is not always easy to modify a custody arrangement that has been ordered by the court or agreed upon by you and your child’s other parent. Typically, it is more difficult to modify an existing custody arrangement than to create a new one in the first place. You must be able to show to the court that there is a “substantial change” in circumstances, for the court to consider modifying a current custody arrangement. Below provides more information about the child custody modification and a number of reasons why you should consider a child custody modification.
When can Child Custody be Modified?
Under Georgia law, a court may modify the initial custody order upon showing that “new and material conditions substantially affecting the interest and welfare of the child” exists after child custody has been initially determined. [Slade v. Slade, 212 Ga. 758 (1956)]. In order for a court to grant a parent’s application for a change in child custody, the parents (or one parent) must show that a change in condition or circumstances that substantially affects the welfare of the child involved has occurred. Upon the appropriate evidentiary showing, the court may change the original child custody arrangement. The court may also modify visitation rights on its own motion during the child custody modification proceedings without either party making a showing or application for such modification, if such modification to visitation rights deems necessary.
As with the initial determination of child custody, Georgia courts will apply the “best interests of the child” test in child custody modification cases. Under the test, courts will enter an order modifying child custody only if the welfare of the child (in other words the best interests of the child) requires modification of the original child custody award after a material change in condition or circumstances has occurred. A material change may include a change in residence, mental illness of the custodial parent, drug abuse, and domestic violence. Under the changed circumstances, a court will determine whether the original custody award is no longer suitable for the child or the parents.
In Georgia, courts are not allowed to use a bright line rule and assume that the parent who currently possess custody will automatically have the right to retain custody. [Bodne v. Bodne, 277 Ga. 445 (2003)]. This means that in change of custody cases, the initial custody award will not necessarily control after any new and material changes in circumstances affecting the child or children have been considered. In sole custody arrangements, the arrangement may also be modified where the parent with only visitation rights experiences an improvement in circumstances.
Child custody order may also be changed by the agreement of both parents or the election of the child or children involved. Parents who agree on changing their court ordered custody arrangement must include a written agreement and submit that agreement to the court for approval in order to formalize the changes. The court will consider how the change came about, how when the changes are working, and how long they have been in effect before formally modifying the agreement. Oftentimes, parents make informal changes to their custody arrangement by altering visitation days or by changing who will pay for a particular activity. However, until they formalize their agreement, neither parent is legally bound to the modified agreement.
If the child involved is at least fourteen (14) years of age or older, that child may choose which parent he or she wants to live with. [O.C.G.A. § 19-9-3]. If a child reaches the age of fourteen and wants to make a change in custody, the court will hear the request to modify the child custody arrangement.
Reasons to Request Child Custody Modification
There may be several reasons why parents want to alter their current child custody arrangement. As mentioned above, however, a court will not consider altering a child custody arrangement for frivolous reasons. Courts hesitate to interrupt a child’s way of life unless there is a material change in circumstances which will affect the child’s welfare. Accordingly, courts scrutinize the reasons why a parent or parents would consider altering the custody arrangement.
Threat of Danger to the Children
One of the main reasons a court will consider a child custody modification is when the child is in immediate danger in the current household. If you believe that your child is in danger, you should immediately consider requesting to the court a child custody modification. In assessing the danger to the child, the court will consider factors such as: domestic violence in the parent’s home, whether the danger to the child is immediate, and whether the child has expressed an unwillingness to remain in the home of the parent where danger may be present.
Relocation of the Parents
Another reason a court will consider a child custody modification is where one of the child’s parents is considering relocating to a distant location. If one parent is moving to a different state or country, the court may change the custody arrangement considering effects of relocation on the child and the other parent’s visitation rights. The court will take into account the motivation of the parent who is relocating, whether the move renders the visitation schedule impractical or impossible, or whether the parents have communicated a way to rework the visitation schedule, whether the child’s life will be interrupted (after-school or sporting activities, friendships, religious upbringing) by a child custody modification.
Not Exercising Current Visitation
If the other parent is not cooperating with the current visitation schedule, you may also ask the court to modify the child custody arrangement. Depending on circumstances (for example, whether the other parent has any reasons for not following the current visitation schedule or whether both parents made an effort to talk out the problem), the court may consider a change to the custody arrangement.
A child custody modification is “necessary” if a custodial parent dies because the court will need to determine whether the non-custodial parent will take full responsibility of the child or if a third-party will take custody of the child. In generally, courts prefer for the child to remain with the non-custodial parent, but if under the circumstances, the child cannot remain with the non-custodial parent for certain reasons, it will consider alternative arrangements. The court will take into consideration the distance from custodial home or family, or whether the non-custodial parent’s ability (such as employment status) to assume full responsibility of a child. In addition, if the child expresses his or her desire to remain with a third-party, the court may consider ordering the third-party to take full custody responsibility.
Whatever the reasons for the modification, it is important for you and your child’s other parent to try to communicate with each other and work out a mutually acceptable agreement before they initiate a child custody modification proceeding. They may also benefit from mediation or arbitration which could be less adversarial and time-consuming than the standard process. If you want more information or have any questions about child custody modification, be sure to speak with a qualified attorney in your state.
Obtaining Legal Help with Child Custody Modifications
Georgia child custody modification cases tend to be quite complex whether they are contested or uncontested cases. However, most cases do settle before a trial if both parties and attorneys with the best interests of the child in mind. If you are facing a child custody modification situation and need experienced legal guidance, call us at 770-609-1247 to speak to one or our experienced divorce and family law attorneys that work in child custody and child custody modifications cases. Contact >>