With most legal matters, the decision of the court (normally made by the elected judge) is final, and unless reversed on appeal, the parties will never be heard or dispute matters related to that lawsuit again.
However, not in divorce (and paternity) cases.1 The divorce court maintains jurisdiction over the children of the divorce until they turn eighteen (18) years of age to look out for their best interests. The Court can modify physical custody2 anytime a moving (filing) parent can show a substantial change in circumstances and it is in the children’s best interests that custody be modified. Under the controlling statute,3 the divorce court judge can literally consider any reason or sets of reasons to modify custody under this standard.4 That said, there are seven common reasons that a divorce court finds a substantial change in circumstances5 and in the children’s best interests to modify custody. They are addressed in this blog.
Drug Use or Abuse. Whether it is street drugs, prescription drugs, and/or alcohol, many Americans (including many parents) struggle with illegal drug use and/or prescription drug abuse, as well as alcohol abuse. In many, if not most cases, if discovered, addiction inherently reflects the children are in harm’s way in numerous ways. For instance, a parent may drive the children while impaired, risking injury or death from impaired motor vehicle operation. Sometimes this becomes known to the non-custodial parent through the custodial parent’s arrest. In these cases, it may be possible to obtain a temporary emergency custody modification if you properly present the emergency motion and evidence to the divorce court on this matter.
Mental Illness. As the United States emerges from the lockdowns related to COVID-19, it is apparent from statistics in the medical community that children and adults are experiencing mental health issues that have risen to crisis proportions. This may be coupled with illicit drug use, alcohol, or street drugs as the impaired parent seeks their use to provide “relief” from their mental health impairments. While impaired mental health may not be a basis to modify custody if the custodial parent is seeking adequate treatment, such as through taking an antidepressant or engaging in psychotherapy, or both, many parents do not get the help needed and it reflects in their parenting in a myriad of ways. The children might start missing school, be unkept, or worse. Ultimately, if a parent’s use of drugs or declining mental state impacts the children in any significant way, this may be a basis to modify custody as this is a specific consideration in the statutory factors a court can consider in deciding a custody modification case. It is important to remember that the court can consider any factor, even though not set forth in the statute, if it impacts the children in a negative way. This means anything impacting the children’s best interests can be exhibited through the evidence at a custody modification hearing.
Arrest/Conviction. As you may see from the first two (2) factors set forth that a court may hear when deciding whether to modify physical custody to the non-custodial parent, an arrest or conviction may be due to substance abuse and/or impaired mental health. Further, unless the custodial parent quickly bonds out or is released on his or her own recognizance, this creates a situation where the custodial parent is no longer able to care for their children due to incarceration. Because parents have a fundamental right to raise their children6 (over anyone else, such as the incarcerated parent’s parent and the children’s paternal grandparents, assuming father is arrested), the non-custodial parent may be able to file an emergency custody modification action and obtain custody due to the inability of the custodial parent to provide care. Arrest and/or conviction are significant factors that may result in a modification with the right presentation of evidence to the court, as facts such as this are not automatically admissible unless offered in court in the right format.
Child Neglect. The concept of child neglect has expanded significantly over the last couple of decades. For a long time, a parent neglecting his or her children was thought of in terms of inflicting physical abuse or allowing abuse by a significant other, such as not properly feeding the children and other situations where there is an obvious physical component that is “neglect.” Today, neglect may lie and serve as a basis for modification of physical custody for many other reasons. For instance, if the children are constantly missing school, are tardy, or their grades are declining and/or failing, this is commonly seen as educational neglect. This type of neglect may be harder to prove than physical neglect and tie it to the children’s best interests. However, skilled domestic counsels successfully advocate such argument for modification of physical custody on a regular basis, such itself being the substantial change. Thus, if you know your children’s needs are not being met by the custodial parent due to neglect, it is key to consult with a domestic attorney to see if this may indeed constitute a substantial change in circumstances to allow you to be awarded custody and address the type of neglect at hand.
Parental Interference. This term is sometimes referred to as parental alienation or parental alienation syndrome. Those are not precise terms and from a psychologist’s standpoint, parental alienation as a syndrome has been disproven. Nevertheless, parental interference is where a custodial parent continually interferes with the non-custodial parent’s time with the children. This may be constant phone calls to the children while that parent exercises parenting time, to having the police go to the non-custodial parent’s time to check on the children because he or she claims the children are not responsive. This is ordinarily referred to as “wellness check.” There are thousands of examples of parental interference that exist. Any one by itself is probably not a basis for modification. However, when many of these behaviors occur together and keep repeating during parenting time and it gets progressively worse, this may so impair the non-custodial parent’s time that it impacts the non-custodial parent’s relationship with the children and make modification of physical custody in their best interests. In fact, the children may even become hostile toward the non-custodial parent because of the psychological training and conditioning inflicted upon them by the custodial parent. To preserve the non-custodial parent’s relationship with the children, noting both parents have a fundamental right to raise their children, these acts by the custodial parent, taken together, may evidence a substantial change. The key is for you, with counsel, to weave all of these acts and omissions by the custodial parent together to show a substantial change, as anyone presented to the court in isolation will not be well received and the case lost.
Child’s Wishes. Perhaps the most known basis for modification is a child’s wishes, with more weight given to a child’s wishes by the court when the child is fourteen years of age or older. The reason for this is, as a child gets older and establishes his or her own interests apart from one parent (or for many other reasons related to age) or has certain needs based on his or her sex, the child may reasonably want to live with the other parent and these wishes equate to a substantial change. That said, the court can give weight to a younger child’s wishes as well. Effectively, the court is looking for a significant reason that shows that the children’s desire to live with the other parent is for a valid reason. Many times, children do not have valid reasons. They just like the other parent’s home, for example, because the rules are laxer. The key to obtaining a modification on this basis as a non-custodial parent is through the various legal tools available, such as an in-camera interview of the children (the judge talks with the children in his or her office), to establish for the judge why this is a substantial change and it is in the children’s best interests for physical custody to be modified. Often, this is apparent, but other times not so much. Skilled domestic counsel can assist you in developing this evidence where the basis for modification is the child’s advanced age and/or maturity level.
Domestic Violence in the Home. Because violence within a family has been identified as a public health crisis, the Legislature passed the Indiana Civil Protection Order Act (herein, “Act”). Under the Act, a spouse may get a protective order to protect him or herself from domestic violence.7 In addition, a spouse may be arrested for domestic violence. In any case, where there is a domestic violence occurrence in a home, it is ordinarily a basis to modify physical custody if the parties are divorced (or paternity has been established and there is a custody order). In cases where a divorce has not yet occurred, a divorce filing and request for an order of protection may be filed simultaneously. These cases are very complicated but often present a substantial change in circumstances. Again, as with all the other six (6) bases to modify custody, by showing a substantial change in circumstances, it is key to properly develop your evidence to obtain a modification. In addition, there are key timing and safety issues in these cases that skilled domestic counsel will guide you through.
The key to obtaining a custody modification based on any of these seven matters is careful gathering of evidence in an admissible format to present it to the court, evidencing a substantial change.8 This is where a skilled family law attorney is invaluable—getting evidence into an admissible format and showing a substantial change in circumstances such that it is in the children’s best interests for the court to modify custody. If not, a case that should win may not. Every judge has seen a case where, despite the factors being before the court, the evidence is not properly presented and a substantial change is not evidenced to allow the court to modify. Thus, if you seek a custody modification, obtain a skilled advocate. Ciyou & Dixon, P.C. attorneys handle child custody cases of all types across the State. This blog is written for general educational purposes only and is not intended as legal advice or solicitation for services. It is an advertisement.
- For readability, only divorce statutes and cases are cited to in this blog, but the same considerations apply in paternity cases.
- This blog only addresses a modification of physical custody. Legal custody is who makes the decision about the children’s healthcare, religious upbringing, and schooling.
- The statutory factors the court considers (along with any other factors) are set forth verbatim in the statute as follows: The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the child, there is no presumption favoring either parent. The court shall consider all relevant factors, including the following: (1) The age and sex of the child. (2) The wishes of the child's parent or parents. (3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child's parent or parents; (B) the child's sibling; and (C) any other person who may significantly affect the child's best interests. (5) The child's adjustment to the child's: (A) home; (B) school; and (C) (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b)of this chapter. (9) A designation in a power of attorney of: (A) the child's parent; or (B) a person found to be a de facto custodian of the child.
- The companion statute in the paternity act is Indiana Code section 31-14-13-2.
- For divorce cases, the statute that sets forth the substantial change in circumstances is 31-14-13-2.
- Troxel v. Granville, 530 U.S. 57 (2000).
- The specifics of the Act and crime of domestic battery are not addressed within this blog.
- There are numerous other examples of events of life that occur that may constitute a substantial change in circumstances to warrant a modification of custody.