Change of Circumstances in Child Custody

Before a court will consider a motion to change custody of a child, the person seeking the change is required to allege and prove a change in circumstances affecting the child and that the change is necessary or that the benefits of changing custody would outweigh the disruptive effect of uprooting the child.

There are many things that change in the life of the parent of a child, but not all changes are such that affect the child sufficiently to warrant a change in custody. A parent with custody of a child has the right to change jobs, remarry, and relocate, even if the move is out of state and across the nation. The mere fact that the parent is making a change in the parent's life is not a sufficient change in circumstances in and of itself, to warrant a change in a custody order. The person seeking a change will have to allege not only that the change will take place, but will also have to detail in what ways the change will affect the child. The remarriage of a parent with custody is not a circumstance that requires a change of custody, but if the stepparent has a history of domestic violence or sexual abuse, the allegation would be sufficient for the court to consider a change in custody. In alleging that a parent is relocating, the person seeking a change of custody will have to also allege that the change will adversely affect the child and detail in what way.

While moving remarriage, change of jobs, and illness are not circumstances that necessarily affect a child, they can contribute toward the totality of circumstances, and when adverse to the child's best interests, can be sufficient to warrant a change in custody. Where a parent with custody takes a new job and that job requires the parent to be out of town for extended periods of time, and as a result the child's grades in school go down and time spent in day care is expanded, a change might be warranted. Where a child is in the last year or two of high school and is very involved in the sports teams of the school, and the parent with custody moves to a new school district many miles away, while the other parent remains in the child's school district, a change in custody to permit the child to remain in the same school may be preferable, particularly when the child expresses a desire to change custody to remain in the school. The change of circumstances that warrants a change of custody must be one that focuses on the child.

In deciding whether a change of custody occurred, the court looks at the circumstances as they existed at the time of a final divorce or custody hearing, rather than at the circumstances that might have existed before then. Any issue that was brought to the attention of the court in prior proceedings cannot later be used to show change in circumstances. In a case where the parent with joint custody agreed that joint custody was not working, and the parents disagreed on the basic matters such as discipline, after-school supervision, and the needs of a child, a change in custody was granted. The inability to agree on basic values was something that was not considered at the time that joint custody was granted.