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Child Custody | Divorce | Family

Can Child Custody Be Changed After A Divorce

9 min read
Philip Ahn, Attorney

by Philip Ahn, Attorney

Has a substantial change in circumstances prompted you to rethink the current child custody agreement you have in place with your ex? If so, you may be wondering if it’s even possible to change your child custody arrangements after divorce. 

Child custody can be modified after a divorce. Changes can be made mutually or via a court order. A judge will typically approve requests for modification of custody if there is a significant reason that is in the child’s best interest. Learn more about making changes to child custody after divorce below. 

We can connect you today with a local child custody lawyer to learn how you can make these changes.

Is it Hard to Modify Custody? 

Making changes to a custody agreement can be simple, relatively quick, and easy if both parents agree. In those cases, a judge will typically agree to the changes. However, you might still want to seek input from a child custody lawyer before agreeing to or requesting any modification.

On the other hand, modifying a child custody agreement when one parent does not agree can often be difficult. This is especially true if custody is currently shared or either parent has full custody. In these cases, the parent requesting modification will have to prove to the court that the change in custody is for the child’s best interest. 

The term “best interest” is vague and a decision will be based on the judge’s understanding of what’s best for the child. If custody is shared, a judge may make custody decisions based on which parent has been the “primary caregiver.” 

The parent who has the greatest responsibility for raising and caring for the child will typically be considered the primary caregiver. 

What Are the Steps to Change Custody After Divorce?

While both parents may agree to change the parameters of their current custody agreement in principle, they still need to go to court to make the change legally enforceable. It may be tempting to simply make a verbal agreement, but this is not recommended. Doing so can lead to major problems down the road.  

Learn more below about the steps required to legally modify your child custody agreement after a divorce.

1. Prepare and File a Motion for Modification of Custody

Most states require parents requesting a change to their child custody agreement to file a petition with the court that originally granted custody. However, exceptions can be made if one or both of the parents have moved to another area of their state or if there are exceptional circumstances that make it difficult to file a motion for the modification of the custody form with the original court.

2. File Your Documents with the Court Clerk’s Office

When filing your documents with the court clerk, you usually receive a court date. You are required to pay applicable fees. If you cannot afford fees, you may be eligible for a fee waiver. 

3. Serve the Motion for Modification to the Other Parent

The parent requesting a modification of the custody agreement must have someone (other than themselves) serve the papers. This is typically done at least 2 – 3 weeks before the court date. 

4. Attend the Hearing 

Some courts will require that parents attend mediation before their hearing. If an agreement cannot be reached during this process, a hearing is held for the judge to consider the request to change custody. It is recommended that you bring documentation and evidence to the hearing to show why the change is necessary and in the child’s best interest. 

What Are the Reasons a Judge Would Change Custody?

It usually requires significant evidence to persuade a judge to change a child custody order.  Approval for modifications of child custody agreements necessitates a significant change in circumstances and evidence the change is in the child’s best interest. Courts may approve a change in a custody agreement if one parent has violated a previous court order. 

There Has Been a Substantial Change in Circumstances

A substantial change in circumstances refers to a significant and permanent change. Temporary changes are usually not considered substantial. Examples of significant changes include:

  • A parent moving to another state
  • The child’s current residence is no longer considered safe
  • A change in the mental or physical health of the parents
  • Changes in the financial circumstances of the parents
  • Substantial difficulties abiding by the current child custody agreement 

The Modification is in the Best Interest of the Child

No matter what reasons you provide for changing your child custody agreement, it will not be approved if the judge does not believe it is in the child’s best interest. In some cases, if a judge is unsure there is such a basis for the change, they will order a custody evaluation before a final decision is made. 

A Parent Has Violated the Terms of a Previous Court Order

If one parent has not held up their end of the agreement and is in violation of the initial court order, a judge may agree to modify the original child custody agreement. Violations of previous court orders can include:

  • Not keeping up with visitation schedules
  • Blocking one parent from seeing their children
  • Neglecting to perform any duties agreed upon in the original custody agreement 

How Long Does it Take to Modify a Custody Order?

The length of time to modify a child custody agreement will vary depending on the circumstances. If both parents agree, it can be accomplished within 1 – 2 months. However, if one parent objects to the modification, the process can then take as long as six months. 

In some cases, a judge will make a temporary order of custody (visitation schedule, custody, child support payments) for the duration of the trial. 

Can Child Custody be Changed Without Going to Court? 

Parents can agree to voluntarily change custody without obtaining a court order. However, this type of modification will not be legally recognized. This means that all obligations agreed to in the original child custody agreement would still be legally enforced by the court. 

Furthermore, an “unofficial” new agreement, although initially beneficial to the parents and children, could be unenforceable if things take a turn for the worse and one parent decides to change their mind or circumstances change. 

If you are a parent who was awarded custody and want to ensure that you are legally protected, it is recommended that you have your new child custody agreement approved by a judge. 

What if My Ex Does Not Approve the Modification? 

If your ex does not approve of requested modifications to the current child custody agreement, it can still be approved. However, you will need to prove to the court that circumstances have substantially changed. You will also be required to provide an ample amount of evidence to substantiate your claim that the change is in the child’s best interest. This is especially true if you are seeking full custody or changing a visitation schedule. 

My Ex Wants to Change Custody But I Don’t. What Should I Do? 

One parent may wish to obtain full custody, modify a current agreement to share custody, or make changes to a current visitation schedule. This can be a scary notion if you do not believe that the requested changes are in your child’s best interest. 

If you are not comfortable with the requested modifications, it is recommended that you collect documentation, eyewitness statements, and all other types of evidence to present to the court during your hearing. This is where the help of an experienced child custody lawyer will be beneficial. 

Do I Need a Lawyer to Modify My Child Custody Agreement?

You can modify a child custody agreement without hiring a lawyer. However, it is usually not in your best interest. Child custody cases are often contentious, drawn-out, and can carry major implications for you as well as your children. 

Child custody lawyers help take the emotion and potential vitreal out of the equation so you can focus on what’s best for you and your child. They are trained to optimally craft child custody arguments. Experienced attorneys understand what facts are important and how to effectively present them to a court. 

Even if you and your ex mutually agree on a child custody agreement modification, it is still recommended that you hire a child custody lawyer. This is because your lawyer understands the potential long-term implications of certain agreements and can advise you to make choices that will be beneficial both in the present and for the future. 

How Much Does it Cost to Modify Child Custody?

In most cases, making changes to a child custody agreement does cost money. The court fee alone is between $50 – $150. The amount of your final bill will depend on whether or not you and your ex agree to the changes or not. If you do, your legal fees will be somewhat lowered since your lawyer does not have to spend a lot of time on your case. 

However, if you’re at odds with your ex about the proposed modification, your legal fees could soar. Most child custody lawyers charge between $3 – $5k just to get started on your case and charge an additional $300 – $500 per hour after that. Fortunately, those who take advantage of our unbundled legal services can significantly cut their legal costs. 

How Can Unbundled Legal Services Help Me Save Money?

Child custody lawyers charge high fees because their services are all-encompassing. They handle every aspect of your case such as filing motions, drafting agreements, negotiating, and attending all court hearings with you. However, most people do not need all of these services. 

Sometimes you just need a lawyer to review your child custody modification agreement, advise you on certain aspects of your case, or attend the hearing with you. If this is the case, unbundled legal services can potentially save you thousands of dollars in legal fees. 

Unbundled legal services can save you money by allocating specific duties to your attorney while you take care of the rest. Unbundled fees can be as low as $500-$1500

It is important to note that unbundled legal services may not be a good fit for every case. If your case is more complicated or requires more work, our lawyers can offer full representation. Since we work with individual lawyers and smaller law firms, the price for full representation (if needed) can still be affordable. 

Consult with an Unbundled Lawyer today, save money, and make the changes to your agreement that work best for you.

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