Common Questions about Child Custody and Visitation

• Under what circumstances can custody orders be changed within the state where they were obtained?

  After a final decree of divorce is filed with a court, former spouses may agree to modify the custody or visitation terms. This modified agreement (also called a "stipulated modification") may be made without court approval. If one person, however, later reneges on the agreement, the other person may not be able to enforce it unless the court has approved the modification.

  Thus, it is generally advisable to obtain court approval before relying on such agreements. Courts 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 affecting custody or visitation and the other parent won't agree to the change, he or she must file a motion requesting a modification of the order from the court that issued it, usually on the ground of changed circumstances. Requiring a showing of changed circumstances encourages stability of arrangements and helps prevent the court from becoming overburdened with frequent and repetitive modification requests. Some examples of changed Circumstances:

  1. Geographic move. If a custodial parent geographically relocates a substantial distance, the move may constitute a changed circumstance that justifies the court's modification of a custody or visitation order to accommodate the needs of the non-custodial parent.

     Some courts switch custody from one parent to the other, although the more common approach is to ask the parents to work out a plan under which both parents may continue to have significant contacts with their children.

  2. Change in lifestyle. Changes in custody or visitation orders may be obtained if substantial changes in a parent's lifestyle threatens or harms the child. If, for example, 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 non-custodial 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 instance, cohabitation by a parent may be ignored in one place, but not another.

Copyright (C) 1995 Nolo Press

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