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Post-Decree Modification of Child Custody

Post-Decree Modification of Child Custody

A court is guided by one principle when deciding the issue of child custody. That principle is the best interest of the child. The best interest of the child is determined by examining the child’s relationship with the parents and important family members, the child’s health and social development, and the child’s general well-being.

Many experts believe that the best interest of the child requires that one parent have sole custody, subject to the reasonable visitation rights of the noncustodial parent. Other experts believe that it is in the child’s best interests to be in the custody of both parents, jointly, to better maintain a good and healthy relationship with each parent. Most courts seem to favor sole custody with visitation rights to the noncustodial parent. However, regardless of the type of custody awarded, a court retains jurisdiction to review the custody award at any time in order to advance the child’s best interests.

Waiting Period and a Change in Circumstances


Many state laws do not permit a change in custody until after a certain time period has elapsed since the entry of the original custody order. The theory is that the initial period of custody should be protected while all parties re-establish their new lives. Most state laws provide an exception to the waiting period when there is a showing that the child’s present environment would seriously endanger his mental, physical, moral, or emotional health. Courts will not modify or change custody unless there has been a substantial change in circumstances that materially affects the best interest of the child.

Agreed Change of Custody


Both the custodial parent and the noncustodial parent may petition the court for a change of custody. If the parties agree to change custody, a court will review the proposed change and the reasons behind it. If the proposed change advances the child’s best interest, the court will most likely approve the modification.

Modification Standards


Each state’s laws set out the standards that a petitioner must meet in order to be entitled to a change of custody. Generally, a change of custody may be awarded if events that occurred after the entry of the custody award show that there was a change in the circumstances of the child or his custodian and that modification is necessary to advance the child’s best interest. Examples of a changes in circumstances might include evidence that the custodial parent cannot provide adequate supervision for the child, the custodial parent has effectively given up control of the child by allowing the noncustodial parent to make all decisions that affect child, or the child’s current environment presents a danger. A joint custody award may be changed to a sole custody award under the same standards. In all cases, the court’s finding as to the change in circumstances must be accompanied by a finding that a change in custody would alleviate problems identified.

Attorney Fees


Attorney’s fees may be assessed against a person who petitions for modification if a court finds that the modification proceeding was vexatious and was brought for purposes of harassment.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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