In filing for or defending against a child custody modification, there are many misconceptions that litigants should know in in order to be success in obtaining a modification or defending against. If these are not recognized and considered, it may hurt your legal position. This blog analyzes these problems so you can properly work with your counsel to address them as they come up in court.
The biggest mistake a parent may make in filing a child custody modification action is filing because of life changes, such overcoming addiction to street or prescription drugs. By itself, it is insufficient to modify custody, even if this parent can provide the children with a better life. Stability is a foundational key a court considers in addressing if a modification is in the children’s best interests. The only way life changes factors into or may form a basis is if there is a nexus with the children. The question to ask yourself if you are unsure is “How do changes in my own life impact the children’s best interests.” If you cannot answer that question, then you probably do not have a strong basis to modify custody. However, your gut sense is most always right. If this is your case, then work through it with your domestic counsel to analyze what else is going on. Your apparently single basis to modify when viewed by a skilled attorney may trigger or develop variables you may not have considered that would reflect a substantial change and it is in the children’s best interests. Ultimately, a parent’s personal growth and improvement in life does not constitute a basis for modification.
Not far behind, and indeed a close second, a mistake a non-parent can make in child custody modification ligation is where the petition to modify is based on minor acts of misconduct by the custodial parent. Indiana’s appellate courts have routinely stated this is insufficient evidence to prove substantial basis for modifying.1 This is where you need a skilled domestic lawyer to help you draw the line. What evidence may be or appears to be sufficient to modify custody.? If there is substantial evidence for modification and a non-custodial parent ignores it, particularity abuse or neglect, it may be reported to DCS and then opening a case to address the matter. The parent who ignored filing for modification where is a clear basis to modify physical custody and/or parenting time will unlikely be well received by the court handling the CHINS case. So the take-away is to work with your counsel to determine a course of action that is ultimately in the child’s best interests.
Finally, with respect to a modification of legal custody, a party seeking sole legal custody has to put on the correct evidence. Many litigants believe evidence that the parents cannot get along and “fight” with each other is the evidence needed to modify legal custody in the children’s best interest. Not so. The evidence necessary to modify legal custody is that the parents cannot agree on religious up-bringing (Catholic versus Baptists), medical matters related to their children (such as getting immunization), or school (private versus public). With this evidence the court may find a substantial change an modify legal custody. In some cases, the trial court’s tailor their orders on legal custody in very precise ways depending which parent will make more sound decision in the child best interests in these categories. In such a case a mother may have sole legal custody over medical decisions, with the father having sole legal custody over matters of education, both sharing or having joint custody over religious upbringing.
- Mundon v. Mundon, 703 N.E.2d 1130 (Ind.Ct.App. 2014)
