As we all know, life happens, and circumstances can change quickly. That custody order that was recently put in place may seem to become impractical in a moment’s notice. Maybe you or the other parent are intending on moving to a new state. Or maybe the other parent married someone that you believe is harmful to your child(ren)’s well-being. Whatever the reason may be, Indiana has established a specific statutory code to deal with modification of custody. This blog provides a brief overview of modification of a custody order and the process behind same.
In order to modify a custody order, an individual must meet certain statutory requirements for same. To expand, and as alluded to above, custody modifications are governed by statutory code. Indiana Code section 31-17-2-21 provides the procedure for custody modification. Pursuant to this statute, two requirements must be met to modify a custody order. First, the modification must be “in the child’s best interests.” Second, there must be a substantial change in one of the child custody factors. Courts look at eight different factors when determining custody and what is in the best interest of child. Those factors are1:
- The age and sex of the child;
- The wishes of the child’s parents;
- The wishes of the child, with more consideration given if the child is at least 14;
- The interaction and interrelationship of the child with the child’s parents, siblings, and other persons who may have a significant impact on the child’s life;
- The child’s adjustment to school, home, and community;
- The mental and physical health of all individuals involved;
- Evidence of a pattern of domestic or family violence; and
- Evidence the child has been cared for by a de facto custodian.
Therefore, when going to modify an existing custody order, an individual must show: (1) it is in the best interests of the child; and (2) a substantial change to one or more of the factors listed above.
As you may have noticed, there is no specific time period that an individual must wait before seeking a custody modification. Many courts have a de facto rule that a year must have passed without some extraordinary situation. However, this does not mean an individual will always have grounds or a basis to seek a modification of custody. This is due to the remaining language found in Indiana Code section 31-17-2-21. Specifically, Indiana Code section 31-17-2-21 provides that “[t]he court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child.” In short, this means that the basis for seeking a custody modification cannot be based on circumstances or evidence that was presented at a prior hearing. Instead, there must be something new that has occurred to justify modification of custody.
For example, suppose you get divorced and the court awards both parents equal parenting time. Now, suppose your ex-spouse gets married a few months later to an individual with a substantial criminal history record. This new change in circumstances may be a sufficient basis to seek modification of custody if this incarceration puts the children at risk in some way. Another example is to suppose at a final divorce proceeding one parent alleges that the other parent has a drinking problem. Nonetheless, following the hearing, the court enters an order awarding both parents equal parenting time. Now, suppose a few months later the parent that alleged the other had a drinking problem wants to modify custody based upon this alleged drinking problem. In such a situation, without new evidence of a drinking problem, this allegation alone will probably be insufficient to modify custody since it was alleged at the prior hearing.
Child custody proceedings can be a trying time for individuals. Not to mention, these are very personal and emotional matters for people. If you are in a child custody case, it may be helpful to seek the assistance of an attorney to help navigate through the process. Ciyou & Dixon, P.C. attorneys handle all types of child custody cases throughout the State of Indiana and understand the significance of same. This blog post is written by Ciyou & Dixon, P.C. advocates and is not intended as specific legal advice or a solicitation for services. It is an advertisement.
- Ind. Code 31-17-2-8. The courts can consider anything else relevant to the child’s best interests.