Many parents receive unfavorable child custody orders and wonder what, if anything, they can do about them. For some parents, life changes make it necessary to ask the judge to modify a prior order. In other cases, there were procedural problems in court that trigger a need to adjust or even vacate an order. Regardless of your reasons, if you wish for child custody modifications, the child custody attorneys at MacKay & Martin, LLP can help.
When Can I Modify My Custody Order?
Modifying a court order requires more than dissatisfaction with its terms and obligations. There are three main circumstances in which you may ask a court to change it. They are:
1. Both parties have come to an agreement about how to modify the prior order. 2. There has been a significant change in circumstances since the prior order. 3. The court, or another party, made a procedural error when establishing custody orders.
Reasons For Child Custody Modifications
A parent may have any number of reasons to want to modify a custody order. Some of the most common ones include:
- One or both of the parents have had a change in their work schedules
- A change in employment allows the noncustodial parent to spend more time with the child (or prevents the custodial parent from spending as much time with the child)
- The child has a new schedule due to extracurricular activities or other commitments
- One parent needs to move for work or other reasons, which will interfere with that parent's ability to visit the child
- The child has expressed a preference to change custody (which a court may or may not grant depending on the child's age and best interests)
- These are all routine reasons to seek a modification. However, in some cases, the reasons to modify may be more dire. For instance:
- The safety, health, or well-being of the child is at risk
- One or both parents have demonstrated an inability to provide for the child's physical, mental, or emotional needs
- One or both parents have died
- One or both parents are abusing drugs or alcohol
- The child is being neglected or abused
- The custody order has been violated
While the last two scenarios may justify a modification, they also demand immediate action. If there is evidence of abuse or neglect, you need to speak with an attorney immediately about filing an emergency motion to address it. Meanwhile, if there is a violation of the order, you should consider a motion for contempt in addition to modification.
Can the parents agree to child custody modifications?
The easiest way to modify a custody order is for you and the other party to agree to the changes and submit them to the court for review. If you and the other party are on speaking terms, you can approach that person and see if a new agreement may be reached. Bear in mind, however, that the judge in your case must review the proposed changes and sign off on a new order. Even if you and the other party are in agreement, you cannot mutually agree to violate or change an existing order. The old order will continue in effect while your request to modify is pending. Once the judge signs a new order, it becomes enforceable.
Although this option is the simplest and most cost-effective, you should still retain an experienced family law attorney to assist you. Issues could arise during the negotiation of a new order, and a lawyer is best situated to anticipate and address them. Also, an attorney will know how to draft a comprehensive order that represents your wishes and doesn't leave any loopholes for the other party to exploit.
What is a “significant change in circumstances” and how does it apply to my case?
If you and the other parent cannot agree on modifying a custody order, you will need to file a motion with the court to request it. The court will assume that the prior order is reasonable and in the child's best interests. Therefore, to modify it, you will need to demonstrate a “significant change in circumstances.”
Many of the above changes have been used to justify a new order. Your or your attorney's job will be to convince the judge that since entry of the prior order, these changes have taken place and require a new custody and visitation order. Judges are often reluctant to modify their orders, since they were arrived at after careful consideration of the facts in your case. This is especially true when the order has been in place for a significant amount of time. A judge may feel that a certain level of stability has been reached, and will therefore be resistant to changing it. Having an experienced California family law attorney is essential to convince the judge that the changes in your case justify a new order.
What if there was an error in my case?
The final method of modifying your custody order concerns errors that took place at a trial or hearing. If you believe the court made an error in law or procedure, you can request a new trial or file a motion for reconsideration. There are also motions to vacate and set aside the court's judgment. Because these motions raise questions of legal procedure and law, it is recommended that you retain an experienced California family law attorney to pursue this modification method.
The family law attorneys of MacKay & Martin, LLP, have helped clients with all aspects of the custody modification process. If your previous order no longer suits your own or your child's situation, schedule a consultation regarding your case.