Changing Child Custody After Divorce

Jodee Redmond
A judge may need to decide whether to allow a different custody arrangement.

Changing child custody after divorce is something that can be done if both parents agree or new information becomes available after custody of the child or children was decided.

Determining Child Custody

If the child's parents can come to an agreement about custody and visitation without needing to go to court to have judge decide the matter, they can work this out themselves. In some situations, they may want or need to seek advice and input from their attorneys, a meditator, or a counselor.

When the Court makes a ruling regarding [Custody: Interview with James M. Quigley|child custody], it always considers what is in the "best interests" of the child. This term can be a bit vague and is open to interpretation by the judge in the case. In deciding where the child should live, the judge may consider which parent was the "primary caregiver."

Primary Caregiver

The primary caregiver is the person who was most often involved in the following activities for the child:

  • Feeding
  • Dressing
  • Making and keeping appointments with the child's doctor and dentist
  • Teaching the child how to read and write

FindLaw.com has published a checklist of childcare duties that one or both parents typically perform for their children. You may want to refer to it to see whether it is likely that a judge will declare that you are the primary caregiver.

Changing Child Custody After Divorce: When the Court Will Consider It

Changing child custody after divorce when both parents agree to the change is a relatively simple matter. Each person would sign an agreement outlining the new arrangement and it would be submitted to the Court for a judge to approve.

If both parents will not consent to the change, the one who wants custody of the children will need to bring a Motion for Modification before the Court. In order to be successful in a Motion for Modification changing custody after divorce, you will need to prove that there has been a "substantial change in circumstances" that is detrimental to the child. This means you will need to gather evidence that you, or a lawyer acting on your behalf, can present to a judge.

No matter how valid the non-custodial parent's concerns are, if they don't meet the definition the Court is looking for, the requested change will not be granted.

Steps Involved in a Motion for Modification

If you want to change the current custody arrangement, you will need to prepare and file a Motion for Modification form. Contact the Court Clerk's office in the county where the original custody order was made to ask for the appropriate documents. In a situation where you are acting without a lawyer, you may also need to file an Appearance as well.

Depending on where you are filing for a change in custody after a final order has been handed down, you may also be asked to file a Request for Leave form. This will give your the Court's permission to file your Motion for Modification.

Once your documents are completed, you need to file them with the Court Clerk's office. (You may be required to pay a filing fee.) The Court Clerk's office will fill in the date of the hearing and let you know the deadline for serving the other parent.

A copy of the documents must be served personally on the other parent. You can arrange for a process server to do this for you; the Court Clerk's office should be able to provide you with a list of process servers who operate in your area.

Once the Motion for Modification has been served on the other parent, the process server will provide you with a Return of Service. This is a form indicating the date and time the other parent was served. The Return of Service needs to be filed with the Court Clerk's office before the date of the hearing.

The next step is to go to court on the day of the hearing and plead your case in front of the judge. Hopefully, you will be able to get the change you want to your current custody arrangement.

Changing Child Custody After Divorce