The bond between parents and children is hard to stretch and sometimes separate, making child custody one of the most difficult aspects to handle in any divorce. Oftentimes, in contested divorces, custody battles turn into heated debates, ultimately ending with the family court deciding on behalf of the parents who will be given custody of the child. These decisions are based on a variety of factors. Once made, an Order is issued. However, the facts that led to the current order can change over time, and should, for any reason, a parent not be able to care for their children, the custody agreement must be altered.

While not a straightforward process, and certainly not every aspect of custody orders will be covered in this article, below are answers to some of the most common questions on how to modify a custody order.

When Can I Modify a Custody Order?

In theory, there is no time requirement for modifying a prior order—as long as you have a final order of custody, you can seek to modify it. However, it is important to note that the amount of time since your case was last before the court is a significant factor in whether or not the judge will modify it. In order to modify an order of custody, a key element is whether there has been a “substantial change of circumstances” since the last order was issued. It’s much harder to convince a judge that things have changed significantly since the last order if only a short time has passed. As a good rule of thumb, if your last order is less than a year old, you’ll probably have to show a major intervening event for the judge to grant a modification.

Who can file a Custody Modification?

Either parent can file to modify an Order of Custody. Whoever files the petition is the party who bears the burden of proof—they have to convince the Court that circumstances have changed such that it is in the best interest of the child for the court to grant their modification. The person who files the petition is referred to as the “Petitioner,” and the person who receives the petition is called the “Respondent.” It’s also important to note that even if the other parent files for a modification and you’re opposing it, you can file for your own modification as well! This is referred to as a “Cross-Petition” and while the same burden of proof is required, it can often be a good idea, as it will allow you to ask the court for what you want rather than merely responding to what the other parent is asking.

How do I modify a Custody Order?

The first step is to see if the other parent will agree to your modification. If both parents agree, then a modification is much simpler. The agreement should be in writing, signed and notarized by both parents, and explain the modification and reason for the change. The agreement can be submitted to the court for approval, and once the court signs it, it will become binding and a confirming order can be issued. To ensure this is done properly and in a binding way, an attorney should help you with drafting the written agreement as well as the process of submitting it to the court.

If there is no agreement, then the parent seeking the modification can file a Petition for Modification of an Order of Custody. This is a request for the judge to decide if the Order of Custody should be changed. An Attorney for the Child will be appointed by the Court to represent the wishes and interests of the child. The other parent will need to be served with the petition; the judge may issue temporary orders; relevant discovery can be exchanged; and ultimately, if the issues can’t be resolved by the parties, the judge will hold a hearing. If the judge decides that the modification is appropriate, then they will issue an Order setting forth the new terms.

Requirements for Modifying Custody Orders

In order to convince a judge to modify an Order of Custody, the Petitioner (the person seeking the modification) must show two things. First, the judge has to be convinced that there has been a substantial change in circumstances since the last Order of Custody was issued. A change in circumstances can take many forms, but ultimately it is intended to explain what has happened to require a change to the terms of the Order. Some examples of a substantial change in circumstances might be the completion of services that the judge previously directed a parent to do or a parent or child having new or unexpected medical needs, but there are many other changes that can justify a modification.

Once the judge decides that there has been a substantial change in circumstances warranting a modification, the next step is for the judge to decide what would be in the best interests of the child or children. The goal of custody proceedings is to protect the best interests of the children, and ultimately, whether or not the modification is in the children’s best interests will determine whether or not it is granted.

Speak with a lawyer today!

The difficulty of knowing that your children may not be living to the standards you had intended for them—or worse, in some kind of danger to their wellbeing or health—can feel overwhelming and unmanageable. Rather than idly watching it happen, an experienced family lawyer can help you start the process of modifying your custody order. Reach out today!

Colin Johnson is a senior associate with Tully Rinckey, where he focuses his practice on family and matrimonial law. Colin has experience practicing child welfare law, first for the New York City Administration for Children’s Services and later for the Erie County Department of Social Services. As a staff attorney and attorney team leader, Colin prosecuted child abuse and neglect cases as well as handled matters in various areas of family law, including custody, visitation, orders of protection, and delinquency. He can be reached at 8885294543 or at info@tullylegal.com.