Bauer Family Law - Modification
Modification of Custody
Courts have the power to modify child custody arrangements to meet the needs of the child and to
respond to changes in the parents' lives.
A parent seeking to change custody through the court usually must show that the conditions have
changed substantially since the last custody order. The change of circumstance usually involves
something negative in the child's current environment--such as improper supervision, or harmful
conflicts with the custodial parent or stepparent.
A child's preference to live with the noncustodial parent can be a basis for modifying custody, but the
child's reasons must be well-based and not appear to be the result of coaching or bribery.
In one case, a father was trying to gain custody of his thirteen-year-old son. In the days before the
custody hearing, the father presented his son with a series of gifts reminiscent of the song "The Twelve
Days of Christmas". Among the acquisitions of the boy: a horse, two television sets, a minibike, a
shotgun, a motorcycle, and a private telephone. The father did not gain custody.
In addition to showing a change in circumstances, the parent seeking a change of custody must show
that he or she can provide a better environment for the child than the child's current environment.
In order to discourage parents from constantly litigating custody, some states apply a special standard
for custody modifications sought within the first year or two after a prior custody order. In those states,
the parent must show not only a change of circumstances, but also that the child is endangered by the
child's current environment. After expiration of the one- or two-year period, the courts apply normal
standards for modification (without having to show endangerment).
If parents voluntarily wish to change custody or the visitation schedule (see below), they may do so
without having to prove special factors such as endangerment or a change in circumstances. Parents
may change custody and visitation without obtaining a court order, but if the parent receiving custody or
more visitation wants to make the modification "official"--thus making it more difficult for the other parent
to go back to the old system--it is best to obtain a court order modifying custody and visitation.
In addition, an informal change of custody will not necessarily stop a parent's support obligation--only a
court order can provide certainty of that.
Modification of Custody or Visitation FAQ
These frequently asked questions explain your options for changing an established custody or visitation
Under what circumstances can custody and visitation orders be changed in the state where they
After a final decree of divorce or other order establishing custody and visitation is filed with a court,
parents may agree to modify the custody or visitation terms. This modified agreement (also called a
"stipulated modification") can be made without court approval. However, if one parent later reneges on
the agreement, the other person may not be able to enforce it. Thus, it is generally advisable to obtain a
court's approval of stipulated modifications. Courts will usually approve modification agreements
unless it appears that they are not in the best interests of the child.
If a parent wants to change an existing court order and the other parent won't agree to the change, the
parent wanting a change must file a motion (a written request) asking the court that issued the order to
modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a
"substantial change in circumstances." This requirement encourages stability and helps prevent the
court from having to deal with frequent and repetitive modification requests.
What qualifies as a substantial change in circumstances?
Here are some examples:
- Geographic move. If a custodial parent intends to make a significant geographic move, it may
constitute a changed circumstance that would cause a court to modify a custody or visitation
order. In that situation some courts switch custody from one parent to the other, although the
increasingly common approach is to ask the parents to work out a plan under which both
parents may continue to have significant contact with their children. If the parents can't reach an
agreement, courts in some states will permit the move unless it is shown that the child will be
adversely affected. In other states, courts will carefully examine the best interests of the child and
make a decision about which parent should have custody.
- Change in lifestyle. A parent can obtain a change in a custody or visitation orders if substantial
changes in the other parent's lifestyle threaten or harm the child. For example, if a custodial
parent begins working at night and leaving a nine-year-old child alone, the other parent may
request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking
drugs, the custodial parent may file a request for modification of the visitation order (asking, for
example, that visits occur when the parent is sober, or in the presence of another adult). What
constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights
varies tremendously depending on the state and the particular judge deciding the case. For
example, most courts do not consider a new same-sex relationship to be a lifestyle change that
could be detrimental to the children, but in some conservative areas that is a real possibility.
Uniform Child Custody Jurisdiction And Enforcement Act
From Wikipedia, the encyclopedia
The Uniform Child Custody Jurisdiction And Enforcement Act ("UCCJEA") is a Uniform Act drafted by the
National Conference of Commissioners on Uniform State Laws in 1997. The UCCJEA has since been
adopted by 45 U.S. States, the District of Columbia and the U.S. Virgin Islands. As of August 1, 2006 the
only states that have not adopted the UCCJEA are: Indiana, Missouri, Massachusetts, South Carolina,
and Vermont. Puerto Rico has also not adopted the Act.
The UCCJEA vests exclusive and continuing jurisdiction over child custody in the courts of the child's
home state, which is defined as the state where the child has lived with a parent for six consecutive
months prior to the commencement of the proceeding (or since birth, for children younger than six
months). If the child has not lived in any state for at least six months, then a court that has "significant
connections" with the child may assume child-custody jurisdiction. If more than one state has
"significant connections" with the child, the courts of those states must communicate and determine
which state has the most significant connections to the child.
The UCCJEA replaced the previous Uniform Act the "Uniform Child Custody Jurisdiction Act", primarily
because the old act was inconsistent with the federal Parental Kidnapping Prevention Act when
determining proper jurisdiction for initial custody determinations. The UCCJEA corrects these
problems. The UCCJEA also added a uniform procedure to register and enforce child-custody orders
across state lines.
Initial custody determination
To determine which state has proper jurisdiction to make an initial determination of child custody, the
UCCJEA proceeds in the following order of priority:
1. The state which is currently the "home state" of the child, or was the child's home state within six
months immediately before the commencement of child custody proceedings if the child is absent from
the state, but a parent or person acting as a parent continues to live in the state;
2. If no state has jurisdiction under #1, then jurisdiction is proper where the child and at least one parent
have a significant connection with the state (other than mere presence), and substantial evidence
concerning the custody determination is available in the state;
3. If no state has jurisdiction under #1 or #2 above, jurisdiction is proper in any state having an
appropriate connection with the child.
A state having jurisdiction under #1 or #2 above may decline to exercise its jurisdiction, and transfer it to
another state if it is more convenient for the parties, or if one of the parties has engaged in misconduct
necessitating a change.
"Home state" is defined as the "state in which a child lived with a parent or a person acting as a parent
for at least six consecutive months immediately before the commencement of a child-custody
proceeding. In the case of a child less than six months of age, the term means the state in which the
child lived from birth with any of the persons mentioned. A period of temporary absence of any of the
mentioned persons is part of the period."
For example, young Chris has lived in Iowa with his mother and father for the last three years. If the
father moves to Minnesota, but Chris remains in Iowa, then Minnesota will not have jurisdiction to
determine custody over Chris. Iowa is the only state that can determine custody at this point.
Once a state court has made a custody determination, that state keeps jurisdiction over all matters
concerning that child, unless:
1. A court of the state with jurisdiction determines that the child or the child and a parent do not have a
significant connection with the state, and evidence concerning the child's custody determination is not
available in the state;
2. A court of the state with jurisdiction, or any other state, determines that the child and both parents or
acting parents do not reside in the state any longer.
Continuing the example above, Chris and his mother move to Minnesota, and live there for more than
six months. Now the Minnesota courts may determine custody over Chris.
Modification of custody determination
Once a custody determination has been made, a court of another state does not have authority to modify
the determination, unless the state with jurisdiction determines that it does not have jurisdiction as
noted above, or any state court determines that the child, parents, and any acting parents do not reside
in the state which currently has jurisdiction.
Continuing the example, Chris' mother gets custody of Chris in the Minnesota courts, and the dad
moves to Arkansas. If Chris spends the summer with his dad in Arkansas, his dad cannot go to the
Arkansas courts and attempt to modify custody - Minnesota has continuing jurisdiction.
A state which does not otherwise have jurisdiction may enter a temporary emergency order, if the child
is in danger and needs immediate protection. After issuing such order, the state court should determine
if there is an existing custody order from another state in effect. If there is an existing order, the
emergency court must allow a reasonable time period for the parties to return to the state having
jurisdiction, and argue the issues to the court with jurisdiction.
If there is no previous child custody order in existence, the emergency court's order will remain in effect
until a determination is made in a court having "home state" jurisdiction over the child. If no
determination is made, and the emergency court's state becomes the home state of the child, the
emergency order becomes a final determination of custody.
Orlando Divorce Attorneys
Bauer Family Law
5401 South Kirkman Road
Orlando, FL 32819
Phone: (407) 926-0255
Facsimile: (407) 926-0254