Steps to Alter or Amend a Child Custody Order

Following the issuance of a divorce decree, the time may come when a parent desires to change the custody order of the court. There are certain steps that need to be taken when it comes to altering or amending an existing child custody order. The steps to alter or amend a child custody order include:

• Attempt to obtain an agreement to change custody order
• Prepare motion to change child custody
• Judicial standard to alter or amend child custody order
• Material change of circumstances supporting custodial change
• Child custody hearing

There is public policy and judicial preference for parents to attempt to reach negotiated agreements between themselves when it comes to issues involving children in a post-divorce setting. The theory is that divorced parties parent more effectively when they can reach agreement between themselves on issues pertaining to children. This includes agreement on fundamental matters like child custody as well as parenting time or visitation.

For this reason, parents should strive to reach an agreement when a situation arises regarding the prospect of changing custody. The reality is that in many cases parents are able to reach a change of custody agreement informally. The agreement is committed to writing and then presented to the court for approval.

If agreement between parents proves impossible, the party desiring to change child custody prepares and submits a motion or petition to alter or amend an existing custody order. The title of this document to be submitted to the court - motion or petition - depends on the law of a particular state where the child custody issue arises.

Most courts in the country now provide access to standard form motions and other types of legal documents for use in a judicial proceeding. These include motions to change custody. Having said that, changing an existing custody order can prove to be a complicated and emotionally charged legal matter. Thus, parents involved in a custody dispute are nearly always best served seeking legal representation.

The judicial standard applied by the court to alter or amend an existing child custody order is the same one used to establish custody in the first instance. This is known as the best interests of a child standard. While the concerns and rights of both parents play some role in child custody decisions, in the final analysis the focus of the court is on what is in the best interests of a child.

Another factor comes into play when a motion is made to change child custody. The parent seeking to change custody needs to demonstrate that there has been what oftentimes is called a "material change of circumstances" that warrants the sought-after custodial alteration. Stability is important for children. Consequently, there needs to be a significant reason to change a custodial arrangement.

The final step in the process of a contested request to change custody of a child is a court hearing. During a court hearing, both parents are provided the opportunity to present their cases regarding the motion to change child custody. Each party presents evidence in the form of exhibits and testimony during the hearing.

Depending on the facts and circumstances of a particular case, a judge may order a social worker to conduct a home study or other type of evaluation as part of process of ascertaining whether a change of custody is appropriate. Typically, the person who prepares a home study or similar evaluation presents a written report to the court and the parties before the hearing. The professional that prepared the report will be present at the child custody hearing from questioning by the parties as well as the judge.

In the final analysis, in considering a change of custody, a court will consider an array of factors to determine if the sought-after change is in the child's best interests. These include everything from the living situation of the parent seeking custody to the overall physical, mental, and emotional health of the parties. Depending on the age and maturity level of the child, that young person may have some input into the proposed custodial change. If you have any questions concerning child custody, call the Law Offices of Peter Van Aulen at (201) 845-7400 for a free initial consultation.