While kids are resilient, judges do not like to move them around in their physical custody arrangement without a significant reason to do so (nor does the controlling statute allow judges to do so). The custodial parent is the parent the children spend the primary amount of time with, so the thought of changing physical custody is destabilizing for the children and thus unhealthy. When the court makes its initial custody decision in a divorce (or paternity) case, there is no presumption favoring either parent. However, once physical custody is determined under the comprehensive set of factors the court considers under the initial custody determination statute, permanency, and stability are considered of paramount importance when a custody modification petition is considered by a court. These legal premises make it more difficult to modify custody than obtain custody initially. This blog addresses how easy (or hard) it is to change custody.
The place to start with any legal query is with the controlling law. The controlling law dictates that the court cannot modify physical custody unless the modification is in the best interest of the children and there is a substantial change in one of the factors the court considers in its initial custody determination. It is here that many lawyers and litigants often make a key mistake that ensures their modification petition fails. A party cannot relitigate the prior case if they did not properly litigate it in the first place; and the court cannot hear evidence on a matter occurring before the last custody proceeding.
In general, there are three (3) ways a parent can establish a “substantial change” in circumstances to successfully obtain a modification.
The first is what can be referred to as a “smoking gun” event where the evidence is directly tied to the custodial parent and likely establishes a substantial change. Instances where this occur are quite diverse. That noted, there are several common “smoking gun” events that may indicate a substantial change in circumstances. A very common and timely example is where a custodial parent is arrested for a possession or dealing charge. It is about as common for a custodial parent to enter into rehab and leave the children with a third party. Both of these may be substantial changes to allow for a successful modification because they directly reflect the potential the custodial parent may be unable to properly care for the children.
The second way a substantial change may be established, and custody modified, is by series of little events. Together, any one event, such as a denial of parenting time, may not make any real difference. However, a pattern of defying a court’s custody order by a custodial parent, taken together, may well constitute a substantial change. This is because collectively, they undermine the non-custodial parent’s relationship with the children. The custodial parent is supposed to be the parent who facilitates the non-custodial parent’s time. The most significant issue non-custodial parents have with seeking a modification based on these facts (unless they are filing a contempt each time there is a violation of the court’s order or a parenting coordinator is tracking these) is forgetting the key facts—the who, what, when, where, why and how of custodial parental interference. The best way a parent can keep track of such is to keep a journal of these events. Which can then be used to construct argument in you subsequent motion to modify. Additionally, your memory may be refreshed at trial under the Indiana Rules of Evidence with your journal if you have kept it (and dated it) contemporaneously with the denials of parenting time or parental interference.
Perhaps the most widely known basis to modify custody by a substantial change is by a child turning fourteen (14) years of age. This is set forth in the original custody determination statute as a factor the court is to consider. This noted, it is an incorrect assumption to assume that if a child wants a modification when he or she turns fourteen (14) years of age, it will be granted. The caselaw from the Court of Appeals of Indiana augmenting statutes under the Divorce Act make this clear. A trial court considering a child’s age can give more or less weight to age whether the child is at least fourteen (14) years of age. Thus, a mature thirteen (13) year-old is likely to be given more weight in a modification case than an immature fourteen (14) year-old. If the basis for modification is just that a child likes the other home better because it is less strict, this is unlikely to lead to a modification (a common basis for modification). In any event, no matter what the age of the child, the court is not going to entertain, and grant after hearing, a custody modification petition if it does not reflect a substantial change in circumstances.
Indiana trial courts can and do modify custody, but a substantial change in circumstances must be proven by a preponderance of the evidence. This blog has relayed the most common ways to establish a substantial change in circumstances to successfully litigate a custody modification case. It is hoped this blog makes you a more educate consumer; this will help you help you help your counsel make the best possible case for a custody modification. This blog is written by attorneys at Ciyou & Associates, P.C. It is not intended to be relied upon for any given legal matter or issue. It is not legal advice. It is an advertisement.