While children are resilient and “bounce back”, modifying physical custody from one parent to another parent is a major life factor that may impact the child’s fundamental sense of safety, security, and stability. For this reason, there are two common factual situations where custody modification does not make a strong legal case.
The first is where the non-custodial parent’s life has improved, but this has had little impact on how the kids are doing in the custodial parent’s care. Remember, the legal focus for modification is on the children’s best interest. So, for instance, a parent who has achieved long-term sobriety may not really be a factor supporting modifying custody if the children are otherwise thriving in the other parent’s care.
Secondly, some parents simply cannot accept not being awarded custody in the first instance and use continued modification filings to attempt to try to correct this perceived incorrect legal custody award. By statute, a trial court cannot consider evidence that was heard or occurred before the last custody order.
Outside these two circumstances, there are many cases where there has been a substantial change in circumstances and it is in the child’s best interest for a change in physical custody. Most non-custodial parents have a sense of these situations.
Normally, the change warranting a custody modification occurs in one of two ways. The first occurs through gradual changes over time in the custodial parent’s household, ranging from a remarriage and difficulties in the children in blending into the new family units to a child’s advancing age and gender. The second is a cataclysmic event, which can be a drug overdose, an arrest, or a serious physical or mental illness.
If this is your situation, this blog focus on the steps to follow to make the decision, best made with counsel, to file a custody modification case—and proving the substantial change. Merely testifying that certain events have occurred is unlikely to result in evidence to demonstrate a substantial change of circumstances to warrant a modification of custody to you in the children’s best interests.
So, where’s the evidence to show the substantial change in circumstances (the child is not having his or her interests met in the present custodial parent’s household)?
This blog provides a checklist of items that may be used to analyze to assess your case and present it in court—to show the child is not thriving in the other parent’s care—and what you need for your counsel (or for your counsel to obtain in discovery) in seeking your physical custody modification:
- Timelines showing what has occurred (or you believe has occurred) to warrant custody and a background of your case—the proverbial who, what, when, where, why and how
- Prior custody orders
- Prior custody evaluations, CASA/GAL reports
- List of doctors, dentist, and therapists (for the children and/or parents depending on the basis for modification)
- Text messages
- Police reports, police runs, protective orders, criminal charges, et cetera
- School records (such as attendance or report cards)
- List of those who have knowledge of the basis for your modification, with corresponding contact information (teachers, therapists, neighbors, friends, day-care providers)
- Journals (such as listing denial of parenting time or references to what has occurred to substantiate the change)
- List of materials that are necessary and believed to exist to warrant custody medication (so counsel can seek these through discovery or private investigation or otherwise)
- Your last six (6) pay stubs and information about the other parent’s employer or income and insurance and day-care costs
With this information, you and your advocate may effectively determine the strengths of your modification case, trial theme, and what evidence needs to be gathered and obtained in an admissible format. You may know a modification is in the child’s best interests, but this allows you to make your case and prove it in court. It’s all about the evidence.
Ciyou & Dixon, P.C. advocates handle child-custody modification cases throughout the State of Indiana. This blog is written for general informational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.