The short answer is YES. Physical custody can be modified after it is initially established by the court in paternity cases. However, a custody modification uses a stricter standard than an initial determination. This blog discusses custody modification standards, requirements, and statutes in paternity cases.
There are a couple of different statutes governing child custody modifications. The first sets forth the circumstances in which a modification of custody can be made, and provides in relevant part; “The court may not modify a child custody order unless: (1) modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 2 of this chapter.
The second statutes, referred to in the first, provides the factors in which a substantial change must have occurred (1) The age and sex of the child. (2) The wishes of the child's parents. (3) The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child's parents; (B) the child's siblings; and (C) any other person who may significantly affect the child's best interest. (5) The child's adjustment to home, school, and community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent.
Generally, the court will first determine if a substantial change in one of the above factors has occurred. If it has, the court will then decide the best interests of the child according to all the factors.
The party requesting the change of custody has the burden of proof in a custody modification. Much of the disagreement at or before hearing, then, originally occurs when the parties attempt to define “substantial change.” While the code, or statute, remains silent on this definition, the Indiana Court of Appeals has stated that a change in circumstances must be judged in the context of the whole environment, and it is the effect on the child that makes a change either substantial or inconsequential.
This is in line with the best interests of the child standard, as what adversely affects one child may not have the same impact on another child. It also works to curtail endless custody modification requests, which absent this standard, could potentially be filed by a non-custodial parent on a monthly, or even weekly, basis. Indiana’s Supreme Court has long recognized that it is in the best interests of the child to have a permanent residence, which a constant change in custody does not provide.
If the court determines that a substantial change in circumstances has occurred, it will then move on to hearing evidence regarding the child’s best interests, as it relates to the factors described in the Indiana statute that should be considered by the court when making a custody determination. The court may also consider any other factor relevant to the welfare of the child.
Just as all families are different, so are all custody modification cases. Therefore, there are no hard and fast, black and white, rules about what specifically will convince a court to modify custody in all cases. If you are considering a custody modification or your child’s other parent has asked for one, the attorneys at Ciyou & Associates, P.C. can help determine which factors are relevant in your specific situation and present evidence to the court that is most favorable to you.
This blog was written by attorneys at Ciyou & Associates, P.C. It is for general educational purposes. It is not intended to be relied upon for any legal matter or issue. The blog is not legal advice. This is an advertisement.
