Changing Physical Custody: Custody Modification

Child custody is never set in stone.  A party can switch custody of a minor child to the other parent if “proper cause is shown” or because of a “change of circumstances” and if the change is in the child’s best interests.

There are basically 3 issues a court will look at when deciding a change of custody of a minor child:
1. Has the petitioner met his or her initial burden of proof establishing either a proper cause shown or a change of circumstances?;
2. Does an established custodial environment already exist?; and
3. Is the change of custody in the child’s best interests?

The petitioner must show by the preponderance of the evidence that, as a threshold matter, proper cause or a change of circumstances exists for the court to even consider a change of custody.  Here, the evidence must demonstrate something more than a normal life event or life change and there must be evidence that a material change has or will have an effect on the child.

If petitioner can satisfy this initial burden, the court will then determine if an established custodial environment exits.  If yes, the petitioner must then prove by clear and convincing evidence that a change or modification of custody is warranted.

When deciding a change of custody, the court is required to consider the “best interest” factors:
— The love, affection and other emotional ties existing between the parties involved and the child.
— The capacity and disposition of the parties involved to give the child love, affection and guidance and continuation of the educating and raising of the child in its religion or creed, if any.
— The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care and other material needs.
— The length of time the child has lived in a stable, satisfactory environment and the desirability of maintaining continuity.
— The permanence, as a family unit, of the existing or proposed custodial home or homes.
— The moral fitness of the parties involved.
— The mental and physical health of the parties involved.
— The home, school and community record of the child.
— The reasonable preference of the child, if the court deems the child to be of sufficient age to express preference.
— The willingness and ability of each of the parents to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent.
— Any other factor considered by the court to be relevant to a particular child custody dispute.

Changing or modifying physical custody can be accomplished.  Contact Eric Tomal if you have custody questions.

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