Monday, October 29, 2012
What to Expect: Modification of Custody
In family law cases, there are times when one parent seeks a modification of the custodial arrangement. As with any family law issue, if the parties agree to the modification, they can enter into a formal agreement which outlines the terms of the modification and file the agreement with the Court for approval. Absent an agreement however, custody modifications can be difficult cases for the party requesting the modification. This is due to the fact that under Indiana law, the party requesting the modification has the burden to prove that (1) a substantial change in circumstances has occurred so as to warrant the modification of custody and that (2) such modification is in the best interest of the child(ren).
Keep in mind there are two forms of custody: physical and legal. A party may request to modify either physical custody, legal custody, or both. When a party requests a modification of custody, the Court must find that both elements of the applicable statute have been satisfied. This can be a difficult burden for the requesting party to meet. For instance, a change in the non-custodial parent’s circumstances is not a substantial and continuing change so as to warrant a modification of custody. So a change in the non-custodial parent’s circumstances – better job, better home, more stable overall – will not in and of itself be sufficient to modify custody.
The most common arguments that successful modifications rely upon involve the safety and/or well-being of the child in question. The most extreme cases involve abuse of a child. Also, a showing that the health of the child has been compromised can support a request to modify custody. Less dramatic factors, such as a significant decline in academic performance, can also be persuasive.
With respect to legal custody, a modification from joint legal custody to sole legal custody may be appropriate if it is shown there has been a breakdown in communications between the parents such that they can no longer communicate with one another to make the child-related decisions. The breakdown in communication can involve verbally or electronically abusive comments, or could simply be a failure of one parent to participate in decision-making that negatively impacts the child (e.g. missed sign-up deadlines).
Custody modifications are not readily granted as courts prefer to see custodial arrangements with children to remain consistent. If you are considering requesting a custody modification, you would be well advised to seek the assistance of counsel specializing in family law.
At Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to assist with your family law needs. If you have questions or concerns regarding divorce, mediation, collaborative law or any other family law concerns, please contact our firm at 317.DIVORCE or visit our website at www.hzlegal.com.