In family law matters, custody will be determined as an initial matter to a divorce or paternity proceeding1 or can be later modified once it has been established2. There are several factors that determine physical and legal custody, with the best interest of the child(ren) being paramount.
However, once custody is established, can custody be changed? The answer generally is yes; however, there are limitations to changing or modifying custody. For example, if an initial custody determination is made and Father is granted physical custody, Mother may file to modify physical custody to her.
To achieve this, she would need to file a motion to modify physical custody and show to the Court that there has been both a substantial change in circumstances, usually in one of the initial physical custody determination factors (for example, the age and sex of the child or the child’s adjustment to the child’s school) and modification is in the best interests of the child.
When a motion to modify custody is filed and a hearing is held on this motion, there is a limit to the evidence the parties can present. The threshold issue in modification is a change in circumstances since the last order of the court. Therefore the time limitation for evidence and testimony is the date of the initial custody determination or most recent custody modification.
Generally, evidence and information from before to the last order on custody cannot be submitted at the new hearing. However, as with most rules, there are exceptions to the rule.
So, if in the example above, Mother files to modify custody, she can only present evidence to support her desired change in custody back to the time when Father was initially granted custody. If Father had a drug conviction before the initial custody determination, it is not proper evidence for custody modification, because it does not show a substantial change in circumstances. His conviction was prior to the last custody order. This is perhaps an over simplification of the rule, and the court could allow testimony upon same under the exception.
The specific language of the rule is that “the court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child…”3. Therefore, whether it has been one (1) year or ten (10) years, the time frame of permissible evidence in a custody modification goes back only to the last custody proceeding.
Understanding this rule can help narrow the focus of a custody modification. While history for both parties is helpful in putting custody modification into context and determining the best interests of the child, realizing there is a limitation to evidence that can be introduced makes the process easier. Do not be frustrated if there is a past issue that cannot be brought up. Instead, discuss with your counsel what has changed and look to the proper time frame to make the strongest case.
We hope that this blog has been helpful in exploring proper evidence in a custody modification matter and the time limitations on same. Dixon & Moseley, P.C. practices throughout the state of Indiana. This blog post was written by Attorney, Jessica Keyes.
