Ciyou & Dixon, P.C. attorneys routinely face questions about the merits and timing of a child custody modification action. In many cases, the facts are not enough to demonstrate a substantial change in circumstances. The respective parent is rightly concerned, but this is legally insufficient.
Nevertheless, we observe five (5) times in a child’s life when a parent should consider filing a child custody modification proceeding. This does not mean that each such circumstance will be sufficient from an evidentiary standpoint, but statistically speaking, these are more likely factual situations where the legal burden will be met.
We hope this article will provide you with some useful background to discuss any potential modification proceeding with your counsel. What are these situations and why are they routine or share a common thread with successful modification proceedings? We provide each and let you, the reader, draw your own conclusion from this blog post:
A common time parents seek to modify physical custody coincides with teenage years. While this coordinates with maturation, it has little to do with this biological process. Instead, it has more, or everything, to do with a custodial parents’ socialization or long-term view of relationships.
For instance, a teenage boy or girl who is particularly close to his mother or father may do better with an opposite sex parent than a same sex-parent during teenage years. This parent may do far better with frank or forth right conversations about sex than the opposite sex parent. On the other hand, there are no hard and fast rules the opposite may be indicated.
With the right parent and the right family dynamic, the sex of the parent or child may make little or no difference. On the other hand, it may be determinative. The central issues, as always, is what is in the child’s best interests. This may, or may not, be determined by biology and sex. If an opposite or same sex parent is better able to relate to the child, that may be a crucial basis for modification.
Relocation to Another Place.
In today’s mobile society, relocation’s by divorced parents are common place. Under current law, this is indexed to custodial and non-custodial parents. Still it is related to the child’s best interest. Where a child is more attached or bonded to a particular parent, a relocation may make little difference.
On the other hand, depending on ties to the community and age, relocation may be of little or profound importance to the child. As always, under the custody statutes, the focus is on what is in the child’s best interest. If, as a custodial or non-custodial parent, you believe this is a substantial change in the child’s circumstances, this may be a legal basis for modification. The view you should take is as a neutral, detached third party.
Remarriage is often a flashpoint in child custody matters. This may occur with the custodial or non-custodial parent. The threshold legal query is how this affects the children. Where a parent and step-parent eases the child into the situation, a re-marriage may have little or no impact on the child.
However, a myopic focus in a new marriage may leave a child in new territory, not the center of attention. Environmental factors, genetic, and socialization to that point may indicate this is a decisive moment and one that relates to a substantial change and one for which it is in the child’s best interest to have custody modified to the other parent.
Again, the legal showing is that there has been a substantial change. And it is in the child’s best interest that custody be modified to the non-custodial parent. This is the legal consideration at hand.
Birth of a Child.
Similar to re-marriage, the birth of a child to re-married, ex-parents may have little or no impact on what is in the best interests of a child and whether this is a substantial change in circumstance. This is, again, a fact sensitive analysis and what a friend, neighbor, or co-worker relays was a basis for modification in his or her case may (or not) be of weight in any given case–your case! Discuss this with your counsel.
Mental or Physical Illness.
A cause of the underlying erosion of a relationship and divorce may be mental or physical illness. This may not be apparent or diagnosed until months or years later. Mental or physical illness does not limit itself to adults, and such with a child, may be the stressor causing a divorce.
When and if mental illness surfaces as a basis for modification, the issue is what the impact is on the child. This may be that the child is mentally or physically ill and the non-custodial parent is better equipped to handle the situation or the parent is mentally ill. In each and every circumstance, the question is how does this relate do meeting the best interest of the child.
If such direct that the non-custodial parent is a better custodian, then the non-custodial parent has a strong case for custody modification. On the other hand, if this makes little or no difference in this family unit, then custody modification is not the inquiry. Instead, it is how the parents should adapt for the child to address this need.
These are the common, but bewildering array of considerations that frame custody modifications. A custodial or non-custodial parent faced with or considering a custody modification does well to consider what has changed, if anything, in the child’s life and how it impacts the child daily.
To the extent the change is substantial–for the child--this may be a basis for custody modification. On the other hand, if the analysis reveals the impact is primarily on the parent, this is a different story all together. These are the vexing, yet common, situations where custody modification may be at hand.
If this is your case, Ciyou & Dixon, P.C. advocates may be a consideration for your counsel. We practice throughout the State.