Changing Custody of Children

A recent case, Christina L. (Mother) v. Chauncey B. (Father), examined what it takes to change custody of the children. In this case, there was a long history of domestic violence which resulted in an order giving Mother sole legal and sole physical custody of the child with visitation to Father. Several years later, Father petitioned the court to modify the previous custody order which the court modified to joint legal and physical custody. Mother appealed the Trial Court’s change.

The Appellate Court stated that to justify ordering a change in custody, there must generally be a persuasive showing of substantial changed circumstances affecting the child. A child will not be removed from the prior custody of one parent and given to the other “unless the material facts and circumstances occurring subsequently are of a kind to render it essential or expedient for the welfare of the child that there be a change”. This is because of the long standing proposition that litigation needs to end and the child’s established schedule will not change simply because a party thinks it should. The court further indicated that the party seeking the change has the burden of showing sufficient change in circumstances.

Generally, parties can find some change in circumstances, i.e., passage of time, change in job, etc., but what is often overlooked is the requirement that the circumstances occurring subsequently are of a kind that render it “essential or expedient for the welfare of the child”. The court looks at how the change in circumstances render it necessary to change the custody order from the viewpoint of the child – not the party. So, if you are going to mount a case to change custody, be prepared to answer and show why the change in custody is necessary for the child and not you as the parent.