Problems That Arise With Child Custody Cases

by Wayne Thomas
Absent an emergency, somes states will not hear a modification request until two years has passed since the original order.

Absent an emergency, somes states will not hear a modification request until two years has passed since the original order.

Comstock/Comstock/Getty Images

In establishing a custody arrangement, courts look to several factors outlined in state law to determine the best interests of the child. After the court makes this determination, however, situations can arise that make the original arrangement unworkable. You may need to call upon the court to modify a custody agreement if circumstances in your life change, such as if you need to move out of state, or it becomes clear that the current arrangement is not in your child's best interests.

Divorce is never easy, but we can help. Learn More

Process

You will have to get court approval to change an existing custody arrangement. In most states, this is done by petitioning the court that entered the original order. Once the paperwork is filed, the other parent will have an opportunity to respond to your request and file a counter-petition. The court will then call a hearing and hear testimony from both sides. In an effort to prevent parties from coming to court after every minor dispute, some states require that two years pass before a modification will be heard unless you can show an emergency situation, such as immediate physical abuse to the child.

Change in Circumstances

In most states, the court will not modify custody terms unless you can demonstrate that a change in circumstances has occurred. Generally, the change must have been unforeseen at the time of the original order. Examples might be if you lost your job or became disabled to the point that you require residential care. In addition, you must demonstrate that any modification serves the best interests of the child. For instance, your disability might be an unforeseen change, but if you are seeking more parenting time, the court could conclude that the best interests of the child either do not support a modification or that the other parent should be awarded more time, particularly if your condition limits your ability to care for your child.

Relocation

Moving is a common problem in shared custody arrangements, often impacting the ability of the non-moving parent to see his child under the terms of an existing custody order. Some states, including Florida, will not allow a parent in a shared custody arrangement to relocate further than 50 miles for a period longer than 60 days without the permission of the court. Other states require the permission of the court if you move out of the court's jurisdiction, typically defined by county boundaries. To persuade the court to allow a move, you must show that the move is legitimate, such as accepting a new job, and that it is not for the purpose of preventing the other parent's parenting time. Regardless of your reason, the court will need to determine whether a modification is in the child's best interest, considering such factors as the quality of schooling in both locations, how contact with both parents can be maintained after the move, and the child's preference, if he or she is of a suitable age.

Contempt

Another problem that can arise in custody cases is one parent's failure to adhere to a parenting schedule imposed by a judge or agreed upon by the parties. In most states, you may petition the court for relief, which can include awarding you missed parenting time, requiring the non-compliant parent to attend parenting classes, and even providing you with sole custody. Although states generally have a public policy that favors contact with both parents, a court could determine that shared custody is against the best interests of the child if the other parent repeatedly violates court orders, leading to instability in the child's life. The court can also find the other parent in contempt of court, impose fines on him and order him to pay your attorney fees and court costs.