Bumpers' Legal Insights

CUSTODY AND MATERIAL CHANGE IN CIRCUMSTANCE

After a divorce or initial custody action, the same Court that heard the action will also be the Court that has the ability to modify visitation or custody. The Court can only modify upon proof of a material change in circumstances and in the best interests of the minor children, then custody or visitation can be changed. While visitation is always modifiable, courts require more rigid standards for modification than for initial determinations to promote stability and continuity for the children and to discourage repeated litigation of the same issues.

The burden of demonstrating a material change in circumstances that warrants such a change lies with the party seeking modification of visitation or custody. Meaning if you want more visitation, then it is up to you to prove there has been a material change in circumstance.

So, what is a material change in circumstance? A material change of circumstances is a change in the facts and conditions associated with a custodial scheme or arrangement so significant that the existing plan no longer satisfies the best interests of the minor children, which is a fancy way of saying something serious happened that affects the minor child and the child or children need to live or spend more time with the other parent. An example would be a parent getting arrested for a DWI with the minor child in the car.

However, the Court does not necessarily have to change custody or visitation based on this event. Instead, the Court must decide if a modification is in the child’s best interests. In the example where a parent was arrested for a DWI with the minor child in the car, what if the other parent was a monster? The Court in spite of the DWI probably would not place the minor child in an inferior position by making them live with Big Foot, Dracula, or Frankenstein.

What if a parent remedies their poor behavior or situation? Is this a material change in circumstances? An example would be a parent with a drinking problem gets sober. While this a positive step toward mending fences with your child, courts will usually decline to change custody or visitation because the offending parent decided to stop offending.

What about when parties have joint custody, which requires the parties’ ability to coparent? In this situation, if a parent shows a pattern of willfully creating conflict to disrupt a current joint-custody arrangement, then the Court may consider this pattern a material change of circumstances and give one parent primary custody. This happens because the ability to cooperate in joint custody is crucial, and the failure of the parents to do so constitutes a material change in circumstances. 

While there are numerous reasons to change custody, ultimately the facts of each particular case must be weighed by a seasoned professional to determine if one can chin the bar.