How do I modify Child Custody?

How do I modify Child Custody?

Modification of Custody & Child Support Agreements

A final order on child custody can be modified with proof of a substantial and material change in circumstances.

What determines if a change is substantial and material?

A substantial and material change is one that has a significant impact on the child.  There is not a definitive guideline as to what is substantial and what is not substantial.

However, there are several common factors a Judge considers when making custody decisions (please refer to my blog entitled “How does the Judge decide who should get Custody”), and the Court will only reexamine an order if one of those factors has been materially altered since the initial determination.   It is important to note that the change must negatively affect the child. If the change does not negatively affect the child, it cannot be used as grounds to revisit the case.  It is irrelevant to the Court how changes may affect the parents (positively or negatively), unless the child is also negatively affected.

New instances of drug use, domestic violence, and social service (DSS) involvement are all typically grounds for revisiting custody agreements.  Again, the incidents must not have happened prior to the previous ruling or been previously discussed.

The following are examples of situations where a Court is likely or unlikely to agree to reopen a case:

  1. The re-marriage of a parent would not warrant reconsideration. However, the cohabitation or marriage of a parent to someone with a criminal background is generally a substantial reason.
  2. A custodial parent’s move across town would not warrant reconsideration; however, the move of a custodial parent out of state may be considered significant.
  3. A child performing poorly in school may be a valid reason, but it depends on the severity. As a general rule, if he or she is still a ‘C’ student, it may not be severe enough to warrant reexamination; however, anything worse than that may be a valid reason.
  4. If DSS is investigates a parent but ultimately dismisses the case, the Court generally will not reopen the case. However, if DSS finds evidence of abuse (with or without removing the children from the home), you may have sufficient reason to have your case reexamined.

Time

As more time passes from the date of the original order, the Court becomes much less likely to agree to reexamine a custody agreement.  It is imperative to act quickly when a new circumstance is negatively affecting a child. It is important to note that not taking action can be inferred as condoning the child’s situation, which is a common defense when one party is fighting against change in custody.

Visitation

In general, it is much easier to have visitation arrangements reevaluated.  You simply have to show a change in circumstances and that amending the visitation schedule is in the best interest of the child.  However, a custodial parent should hesitate to request that visiting parents rights be further limited.  Without substantial reasoning it could lead to the noncustodial parent being granted more rights or reimbursement for attorney fees.  On the other hand, a noncustodial parent asking for more is less scrutinized, but strong hesitation should be given if he/she already has standard visitation.

Please remember that each case is unique and that many factors influence the ultimate custody judgment. Therefore, it is imperative that you consult with an attorney to discuss your unique set of circumstances. If you find yourself asking “How do I modify child custody?” or have questions regarding child custody, or family law in general, we urge you to contact us. We have open office hours for client appointments and payment plans available. Contact us today to schedule your free, confidential consultation.

Our law office serves people across the Upstate, South Carolina, including: Greenville, Spartanburg, Anderson, Pickens, Laurens, and Oconee counties.