Change Child Custody

There are times when a change of circumstances makes a change of child custody appropriate. If you have had a change of circumstances that makes your current child custody order no longer reasonable, follow the steps below to change child custody.

Steps

  1. Determine if an agreement on custody can be reached. Talk to your child’s other parent to see if he or she agrees to the custody arrangement you want to have. Be sure that whatever arrangement you come up with includes physical and legal custody, visitation, and child support.
    • Physical Custody. The party who has physical custody of a child is the one with whom the child lives most of the time. Physical custody can be joint, with the child rotating weeks or months living with each parent. Generally, joint custody is only awarded when the parties agree to it, or they get along well and live within close proximity to one another.
    • Legal Custody. The party who has legal custody of a child is the one who is allowed to make decisions regarding the child’s upbringing, such as education, religion, and medical decisions. Legal custody, just like physical custody, may be joint, allowing both parents to have an equal say in matters.
    • Visitation. Most states have child visitation or parenting time guidelines which the Court uses as the minimum amount of time a non-custodial parent gets for visitation with his or her child. If you are requesting less than the guideline visitation allows, you will have to prove to the Court that it is in the child’s best interest to visit less often with his or her other parent.
    • Child Support. Because child support is calculated based on who has custody of the child and how often the non-custodial parent exercises overnight visitation with the child, a change of custody may result in child support needing to be modified along with custody.
  2. Locate the proper forms. To locate the proper forms for your situation, check your County or State Court’s website. You can find your court’s websites by following the link for your state on the State Court Web Site list provided by the National Center for State Courts. You may also wish to check with the Court Clerk or Friend of the Court, if your state provides Friend of the Court services. The forms required will vary from state to state and depend on whether you and the child’s other parent are in agreement on the custody arrangement, and may include:
    • Custody Forms. A Petition to Modify Custody is the main form that you will need. It tells the Court why you wish to change the current custody arrangement. You may also need to provide the Court with a proposed Order on Custody, for the Judge to sign should he or she rule in your favor.
    • Support Forms. If the new custody arrangement will change the amount of child support paid by either parent, you may need to file a Petition to Modify Support, a Child Support Worksheet, and a proposed Order Modifying Support.
    • Hearing Forms. If you and the child’s other parent are not in agreement on the new custody arrangement, or if your state requires a hearing before modifying child custody, you may need to file a Motion to Set Hearing and an Order Setting Hearing. The Court will fill in the date of the hearing on your order, the Judge will sign it, and then the Court will send a copy to you and your child’s other parent so you both know when the hearing will be held.
  3. Complete the necessary forms. Fill out the forms, providing all of the requested information. Some basic guidelines to help:
    • Find your old paperwork. Your case or cause number as well as the date of the current custody order can be located on your previous Court paperwork, or by calling the Court Clerk and asking for the information.
    • Look at your state’s child custody law. In the Petition to Modify Custody, you will need to explain your reason(s) for the change of custody. Check your state’s statute to ensure that your reason for the change is one, which your state recognizes as a justification for a change of custody. In most states you must allege a ‘substantial change of circumstances which makes the current custody order unreasonable” in your petition, and then provide the Court with evidence of such changes at a hearing.
    • Ask for help. The Court Clerk may be able to assist you with filling out your forms, free of charge. preparer if you need additional assistance that the Court Clerk cannot provide, you may wish to hire a paralegal or legal document preparer.
  4. File the forms with the appropriate Court. Call the Court Clerk and ask how many copies of each form you will need and if there is a filing fee. Make the appropriate number of copies and then take the forms and your filing fee to the Clerk’s Office for filing.
  5. Prepare for your hearing. If you and your child’s other parent are not in agreement on the new custody arrangement, you will have to attend a hearing, where you will need to prove to the Court that a change in custody is in your child’s best interest. Check your state’s custody modification code to determine what factors the Court will use when determining custody in your state. Some common factors that the Court considers when making custody determinations include:
    • The age and sex of the child. Oftentimes very young children are considered by the Court to need their mother more than older children. The court may also want to ensure that a child spends enough time with his or her same sex parent.
    • The mental and physical health of all parties involved. The Court will consider any physical, emotional, or mental health problem of a parent that may impede his or her ability to parent a child. It will also consider the child’s health and which parent is better able to care for him or her, if there are any health issues.
    • The child’s adjustment to the current custody arrangement. The Court will generally consider a child’s after school activities and community involvement at each parent’s home when determining which home is best for the child.
    • Proximity of relatives. A child’s relationship with his or her relatives and their proximity to the child’s home may be considered an important factor by a Court making a custody determination.
  6. Attend your hearing. You may choose to do this with or without an attorney. When attending a Court hearing, be sure you:
    • Arrive on time. Not only does being late make a bad impression, but if are not present when your case is called, the Court may move on to the next case and force you to reschedule your hearing.
    • Dress appropriately. Even Judges form first impressions of people based on their appearance. Your hair should be neat, ladies should not wear too much make-up, and men should shave or trim their beards and mustaches. Do not hear anything short, tight, or showing too much skin.
    • Follow the Courts rules. If you do not bring an attorney to Court with you, you will be expected to follow the same rules he or she would in presenting your case. Check your Court’s website for information about representing yourself, and consider attending Court a week before your hearing to watch how other’s hearings go and what procedure is followed.
  7. Wait for the Court’s decision and Order. The Court will likely not make a custody decision the same day as your hearing. You should receive an order in the mail generally within a few days to three weeks. If you do not receive your Order within 30 days, call the Clerk’s Office to make sure one has not been issued and that they have your correct address.

Warnings

  • You should consult with an attorney before signing anything that may affect your legal rights and/or obligations.
  • When changing custody, be sure to go through the Court and obtain an Order signed by a Judge, or you may end up owing child support even though the child lived/lives with you.

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