Once a final decree of divorce or other court order has been established to determine each parent’s rights and responsibilities regarding custody and visitation, this order becomes legally binding. However, a parent can request a modification asking for a change if he/she can show that there has been what is called a “substantial change in circumstances” since the last order was created. Today, we will review what the court defines as a “substantial change in circumstances” and when child custody can be modified.
Defining a Substantial Change in Circumstances
The court relies on proof that a substantial change in circumstances has occurred to deter parents from frequently requesting modifications. Additionally, the court will only grant a modification if it is also in the best interests of the child.
A substantial change in circumstance means a permanent change. This might include a decline in one of the parents’ health, the loss of a job, or instances of domestic violence. Here are some additional examples of what the court defines as a substantial change in circumstances:
If one parent needs to make a significant move, such as relocating for a higher paying job, he/she can petition the court to modify custody and/or visitation. The court will ask the parents to try to work out a new parenting plan to accommodate to everyone’s schedule. In the event the custodial parent needs to relocate out of state and the other parent wishes to change custody, the court will take this into consideration and decide what is in the best interests of the child. In regards to relocation, the statute criteria for the child's best interests can be found at N.J.S.A. 9:2-4.
Change in the child’s needs
If it has been discovered that the child requires more educational support (for example, if the child has a learning disability) or medical expenses, a parent can make a request to modify custody. If one parent is better suited to provide for a child with a mental, emotional, or physical disability, it is possible the court could change custody.
Additionally, as a child grows and matures, their needs will change. A child may need to spend their earlier years with one parent and their high school years with the other. You may wish to change custody due to these factors.
One parent refuses to adhere to the custody terms
If one parent is not following the custody agreement you established, you can file a petition to modify custody. You will need to show that these violations negatively affect the child’s wellbeing. Not cooperating with the judge or co-parent is a huge red flag in the eyes of the court. If the parent continues to violate their orders, then their parental rights may be stripped.
If one parent has exhibited bad behavior, such as abusing drugs and/or alcohol or physically, sexually, or emotionally abusing the child you can work with your attorney to modify custody and secure a protective order if necessary. If your child is ever in immediate danger, contact the police immediately. Endangering a child is a serious offense and can also strip you of your custody or visitation rights. Section 2C:24-4 has more information about endangering the welfare of children.
Motion for Modification of a Custody Order
Either parent can request a change in custody or visitation due to a substantial change in circumstances that is not temporary and would be in the child’s best interests. After the court has listened to the motion to modify custody, a custody evaluation may be performed. As such, it would be beneficial to consult with an experienced lawyer during this time as how each parent presents their issues in a custody evaluation can determine whether the court will grant a modification.