In most post-divorce cases, there comes a time when a non-custodial parent believes it is “time” to go back to court and move to modify custody. One major mistake parents make is equating the betterment of their life with a substantial change for their children to modify child physical custody. Custody modifications are not uncommon, and presupposing you are not making this mistake, what you need to establish to likely prevail in your modification case is based on three components that are explored in this blog post. Is this your case?
The basis. While the advanced age of the children (i.e. 14) is often thought to create a basis for modification, this is often not the case. Instead, it is merely a factor the court can consider. In the largest percentage of cases, a successful basis for modification will occur in one of only two ways. The first is when something major occurs in the custodial parent’s life, such as a relocation to a far-flung state or country or something illicit, such as an arrest or lapse into drug addiction. These are easy to establish in the facts and can support a modification of custody. In addition, a string of less serious incidents that interfere with parenting time, such as constantly being late, putting the children in the middle of parental disputes, denial of parenting time, failure in school, and the like may collectively amount to evidence of a substantial change in circumstances to warrant a modification.
The evidence. While a parent may know it is in the children’s best interests to modify custody, the movant (the parent who seeks to modify custody) has the burden of proof in the modification action. With major events, an arrest and conviction record may be sufficient. In other cases, the small but cumulative events to show a modification is in the children’s best interests may come from a variety of sources. The most important are often the following:
- Medical records
- School records
- Therapy records
- Journals
- Photos
- Texts
- Emails
The theme. Ultimately, even with a strong legal basis and solid evidence (that is in an admissible format), the courts like stability so these components have to be woven together in the over-arching standard the court considers, which is it is in the children’s best interests to have custody modified. In other words, the basis and reasons supported by the evidence must convince the court that a custody modification is in the children’s best interests. This is where many litigants lose their case. Some isolated event of bad parenting by the custodial parent or a significant change in the non-custodial parent’s life is not enough to show a substantial change and it is in the children’s best interests to modify custody.
Weaving these components together to make a strong custody modification case takes the work of a skilled and seasoned defense counsel. However, it can be done and with these showing, you may obtain a custody modification. This blog post was written by attorneys at Dixon & Moseley, P.C. who handle domestic cases of all types in all Indiana counties. It is written for general educational purposes only and is not intended as legal advice or a solicitation for services. It is an advertisement.
