After a divorce or child custody determination, one thing that frequently comes up is the desire to modify the court’s order.
It is well understood that child custody is always modifiable until the child reaches the age of 18. And while that sounds simple enough, the court will often reject petitions for change citing that there has not been a substantial and material change of circumstances since the entry of the last order.
This raises two questions: What constitutes a substantial and material change, and when does this change have to occur?
Defining a material change of circumstances
Many ideas in law are vague to say the least, but few are so vague as the idea of what is actually a substantial and material change of circumstances in terms of child custody.
The short definition is that a substantial and material change is whatever the judge wants it to be. The long definition is a little more complex and state-specific.
In general, a substantial and material change as it concerns child custody can be any of the following:
- The parents have moved and now live a substantial distance apart so that the previously ordered visitation cannot be accomplished. This is especially true where one parent moves out of state.
- The child has started failing in school and is at risk of being placed on a remedial educational track.
- The custodial parent has started living with someone else. This becomes most influential when the new cohabitant has a criminal record.
- One parent is refusing to comply with the ordered visitation or custody. (I generally advise to approach this in two steps — first, file to hold the non-complying party in contempt of court, and once they have been found in contempt of court, file for the change in visitation or custody).
- The child is starting school. This arises when the child was not in school at the time of the initial order.
- The child is substantially older than at the time the order was entered.
- The child has stated a preference. This only comes into play when the child is old enough to voice his/her opinion in court. Each state has different rules regarding the testimony of children.
- When one parent is charged with some type of familial abuse.
Obviously, this is not an exhaustive list but examples of situations that normally arise to the level of a substantial and material change.
The individual factors will depend on your state, and each judge has the discretion to give greater weight to different changes in circumstance.
When you should file for a modification
The second question is when the change should arise. This may seem simple on its face, but frequently it is not.
The substantial and material change must take place after the entry of the last order regarding custody or visitation, meaning it was not present during the initial hearing.
It is common for parents to argue about each other’s bad acts, but if they existed at the time the last order was entered, the continuation of the act does not constitute a change.
An example of this would be if the mother has always drank a lot around the children, but she has never let her drinking cause any physical harm to the children. If the father raised this issue at the initial custody/visitation hearing, then raising it later would not constitute a change.
On the other hand, if the mother was arrested for driving under the influence after the initial order was entered and had one of the children in the car, it would be cause for a change because the children are now in danger.
That is why it is important to understand not only what constitutes a substantial and material change of circumstances, but also to understand when the change must take place to help you succeed in your custody modification.