How Can a Motion for Custody Change Be Dismissed?

By Mike Broemmel

A child custody order is modified by filing a motion to change custody. A level of permanence is associated with child custody orders. In other words, when a court issues a custody order, it typically will not order a change to the arrangement unless there's been a significant change of circumstances -- a change so significant that the best interests of a child are no longer served by the existing custodial arrangement. Once filed, a motion to change custody can be dismissed for many reasons.

Custody Change Waiting Periods

States typically impose waiting periods before you can seek a modification to an existing custody order, which vary among jurisdictions. For example, in some states you must wait a year after the entry of a custody order before you can seek a modification. Other states have somewhat shorter times periods. Some states require longer waiting periods between motions to change custody, two years being a common period. In all states, however, if a true emergency exists and the child's welfare is at stake, you can file a motion to change custody, at least temporarily, at any time. If a motion that does not allege a true emergency is filed within the waiting period established in your state, the court dismisses the motion.

Significant or Material Change of Circumstances

The failure to demonstrate a significant or material change of circumstances represents another common reason for the dismissal of a motion to change custody. Some states maintain what is called a bifurcated process, a two-step hearing process for motions to change custody. At the first hearing, you must make a preliminary demonstration that evidence exists supporting a change in circumstances warranting a custody modification. If you fail to make this initial demonstration, the motion is dismissed. In the second hearing, a full presentation of evidence is made supporting your contentions. The second, full hearing represents yet another juncture at which a motion is dismissed if the evidence you present fails to demonstrate a significant or material change of circumstances.

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Improper Pleadings or Court Documents

Although the reasons you want to change custody are fundamental to a court's decision, form is also important in the court systems across the United States. In virtually all courts in the country, you must follow a specific procedure and provide specific forms to pursue different types of family law issues, including a change of child custody. If you fail to use required forms, or if you neglect to complete the forms completely and accurately, the court is likely to dismiss the motion.

Agreement of the Parties with Court Approval

The parents of a child have the ability to agree to a change of custody. Despite the agreement, in most jurisdictions they must file a motion to change custody with the court. Simply because the parents want to change custody does not automatically mean that the alteration is in the best interests of a child. If the court, at its discretion, does not believe the proposed change of custody is appropriate and in the child's best interests, the motion is dismissed by the judge.

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