Are you not satisfied with the way the your child custody parenting plan because circumstances have changed? Fortunately, you may be able to get child custody order modified. If minor children are in the picture, the court has the discretion to issue a child custody order. Under the child custody order, the court, depending on the circumstances, can establish how the parenting time will be allocated between both parents. The court expects the parents to follow the order as stated. However, there comes a time when the original custody order just cannot be followed anymore. To modify the original child custody order, the court evaluates the order if there has been a “substantial change” in circumstances.
However, it is important for you and your spouse to be in agreement as to child custody modification. When it comes to determining the child custody, the court focuses on the “best interest” of the child. What constitutes as best interest of the child depends on case-by-case basis. The article below is written for educational purposes only. It will highlight the ins and outs of child custody while listing out the times when the court has the discretion to modify it. Before seeking a child custody modification, it is important to seek the advice of an experienced attorney.
Child Custody Modification and the Required “Substantial Change” in Circumstances
Either parent can ask for a custody order modification, but the judge will not always approve the request. A parent requesting a change should be able to prove that there has been a change in circumstances that happened after the custody order was issued. The change is permanent and the parents were not fully aware of the change at the time the custody order was issued. The Georgia courts in Danner v. Robertson held that the there must be enough evidence showing that a change of condition is necessary even if the parents are in agreement as to custody modification. Therefore, even if parents agree that they to the change in custody arrangement, and even if the agreement is reduced to writing, a court will not consider the agreement as legally blinding unless the parents have made some showing of change of condition.
Process for Initiating Child Custody Modification
In order to ask the court to change the custody court order, the parent has to file an application to modify the order. However, jurisdiction to decide custody – in what state or where the custody order change can be brought – is also quite complicated. As a rule of thumb, the state where the first custody order was issued has the jurisdiction as long as the parent lives there. Let’s say, the order is from Georgia and the parent lives in Georgia, the application should be filed in Georgia. However, if the original order is from a different state and both parents have moved somewhere else, the state no longer has the jurisdiction to change the custody order
Major Factors Considered to Determine a Change in Child Custody
Geographic Move
If the custodial parent makes a significant move, which seriously disrupts the stability in child’s life, the move likely constitutes as changed circumstances, which justifies the court’s modification of a custody or visitation order. Courts have the discretion to switch the custody from one parent to the other, however it is the common approach to ask the parents to work out a plan, which will be in the “best interest” of the child under which both parents may continue to have significant contacts with their children. If, however, no agreement is reached, then the states will allow the move unless it is shown the move will directly impact the child adversely.
Change in Lifestyle
If substantial change in parent’s lifestyle threatens or puts child’s life in danger, the change in custody or visitation order may be obtained. For example, if a custodial parent begins working at nighttime and leaves a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a noncustodial parent starts drinking heavily or takes drugs, modification of the visitation order may be requested. Many parents need to modify the schedule to spend more time with the children. Besides, children’s needs change over time. Both parents can modify the custody order. According to studies, the older the children become, the more parents argue about medical arrangements. This is especially important if a child needs special care. In this case, parents seek to modify the child custody order.
In order to determine whether change is important enough to result in modification of child custody, the Georgia courts have considered the following:
- One parent moved to another state
- Academic performance of the child
- One parent is abusing drugs or drinking too much alcohol
- One parent started living with somebody who uses drugs
- A parent is sent abroad for military duty
- One parent is homeless and has no house for the child
- A child needs constant care
- A parent goes to jail
- A new partner of a parent is abusive to the child
All the paperwork that needs to be done before modifying the child custody order can be complicated. Quite often there are issues that a person will miss if he or she is completing documents without a lawyer. Therefore, it’s advised to have professional help to ensure that you are completing the documents properly, in the correct order and are protecting your interests.
If the parents agree on a change in custody, does the judge have to order a change custody?
No. But in most uncontested (agreed) child custody modifications, the court will approve the parent’s agreed changes to custody. While the court usually prefers the parents to come to an agreement, the judge has the discretion to look through the parenting plan to ensure that the custody modification will be in best interest of the child. If an agreement is not acceptable to the court, the parties will usually have the option of amending the agreement with usually some guidance from the court and resubmitting it.
If you feel like your children should be spending less time with the other parent or want to change the child custody order for another reason, then it is advised to contact our attorneys today. Our attorneys have experience in handling child custody modification cases. During our initial consultation, we can help you determine whether the child custody modification will be in best interest of child or not. You do not have to go through this alone. Call 770-609-1247 today to discuss your case with one of our experienced family law child custody attorneys.
