Can Physical Custody Be Changed for Children When Parents Have Joint Legal Custody?

By Anna Green

In many instances, it is possible for parents to change their children’s physical custody arrangement when the parents have joint legal custody. That said, each state makes its own laws regarding child custody issues. Thus, the exact procedures for changing physical custody, and even the terminology used to refer to custody arrangements, vary from state to state. In other words, the process for changing custody will vary based on where the family lives.

Joint Custody Basics

If parents have joint legal custody but one parent has sole physical custody, this means that both parents make decisions for the child, but one parent is the primary physical caregiver. In such situations, the parent without physical custody generally has visitation rights, which is also referred to as parenting time in some states. When parents have joint physical custody, the child spends approximately the same amount of time living with each parent. This does not mean the time spent with each parent is completely equal, however. For example, in a joint custody situation, a child might spend holidays, occasional weekends and summers with one parent and all weekdays during the school year with the other parent.

Process

Generally, the court makes a custody determination during the parents’ divorce case. However, parents may also independently petition for custody in a separate case. If the court has issued a custody order, and the parents would like to modify the physical custody arrangement, the parent seeking the change must file a written motion with the court. This motion will generally need to outline the specific reasons for seeking a custody modification and explicitly request a change in physical custody. After the parent prepares the motion for change of custody, he or she must file it with the court and serve a copy on the other parent. Both in the motion and at any hearings, the parent requesting the change of custody will need to present evidence indicating that a custody change is in the child’s best interests. For example, the parent might present evidence indicating the other parent can no longer maintain a safe, stable living environment.

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Contested Issues

If parents cannot mutually agree on the terms of the changes to the physical custody arrangement, the court will usually hold a hearing to see whether the modifications are in the child’s best interests. Courts often encourage parents to reach their own custody arrangement and parenting plan without the assistance of the court. If the parents cannot agree, the judge may require the parents to attend mediation or hold a hearing to determine what custody arrangement is in the child’s best interests.

Changes in Circumstance

Generally, for the court to modify an existing custody order, there must be a change in a parent’s lifestyle that has transpired since the judge entered the initial custody order. For example, if a parent takes a new job that requires her to travel for several weeks at a time, this may be grounds to change custody. Likewise, if a parent loses his job and can no longer afford a safe home and adequate food for the child, the court may consider a custody modification. Finally, the court may also consider a custody change if a parent remarries and the child has a poor relationship with the stepparent.

Decision-Making Factors

When making changes to a joint custody arrangement, the court will consider many factors, including the child’s relationship to his or her parents, siblings and stepparents. Likewise, the court will look at each parent’s ability to meet the child’s physical and emotional needs. In some cases, the court will also look at the child’s preferences when deciding whether to modify the custody agreement. That said, overall, the court will base its decision on what arrangement is in the child’s best interests.

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What Is a "Change in Circumstances" in a Custody Case?
 

References

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