Child custody can always be modified if a party can show a substantial change in circumstances and that it is in the children’s best interests to modify custody.1 While litigants often know witnesses like teachers and neighbors that can testify about what they see and observe going on with the children, they do not as often understand what documents may help make any given modification case. This blog covers common documents that are helpful in most cases where a parent seeks to modify physical custody of the children.
The place to start with any domestic matter is with the controlling law. The controlling custody modification statutes under the divorce and paternity acts are effectively the same;2for simplicity, the dissolution modification statute is set forth, in full, as follows:
(a) The court may not modify a child custody order unless: (1) the modification is in the best interests of the children; and there is a substantial change in one (1) or more of the factors that the court may consider under section 8 and, if applicable, section 8.5 of this chapter. (b) In making its determination, the court shall consider the factors listed under section 8 of this chapter. (c) The court shall not hear evidence on a matter occurring before the last custody proceeding between the parties unless the matter relates to a change in the factors relating to the best interests of the child as described in section 8 and, if applicable, section 8.5 of this chapter.3
This statutory section should be carefully considered by litigants and their counsel to avoid a mistake that plays itself out over and over again each day in Indiana court rooms as judges listen to evidence presented on past (sometimes without objection) modification petitions. Again, this is evidence that occurred before the current physical custody order. In short, a custody modification action cannot be brought and won based on evidentiary shortfalls in the last proceeding “corrected” in the current testimony (or exhibits) as the “court shall not hear evidence on a matter occurring before the last custody proceeding between the parties . . . .”
So aside from knowing the substantial change has to be established based on circumstances since the last physical custody order, you only should gather documentary materials from that point forward that show a substantial change, if possible, unless otherwise advised by counsel.4 These would include the following for the parent seeking to modify (or custodial parent in defense:
- Report cards, if applicable (showing evidence the children’s grades are falling).
- Attendance records, if applicable (showing the children are tardy or absent from school).
- Medical records, if applicable (dental and pediatrician records if they reflect neglectful care).
- Social media posts, if applicable (unfortunately, many children are making social media posts that are not only inappropriate but subject them to on-line predators).
- CPS investigations, if applicable (remember certain CPS documents are confidential).
- Police reports and runs to the custodial parent’s home, if any.
- Arrest and/or conviction records of the custodial parent, if any.
- Injury or incapacity of the custodial parent.
These are typically the most powerful types of documentary evidence to utilize in a child custody modification proceeding, if you are the parent seeking modification. However, skilled defense for the custodial parent can make many arguments through the evidence to try to deflate the actual or perceived weight of this type of evidence or even present direct rebuttal evidence.
To prevail and show a substantial change in circumstances and it is in the children’s best interest to have a modification of physical custody, it normally is accomplished by the evidence in one (1) of two (2) ways. The first, and perhaps the hardest (but carefully look at the initial custody considerations as they may help you flesh out additional evidence you may not have considered to demonstrate a substantial change) is to show the children are not doing well academically and socially.
Thus, taken together, the evidence as a whole shows a substantial change in circumstances, and it is in the child’s best interests to modify custody. The long-term implications of maintaining the status quo (not modifying custody) should be explored. This may be accomplished and established through a combination of witnesses and exhibits. However, an expert may be necessary to testify about maintaining the current physical custody and its negative future implications for the children because parents cannot speculate as to what the future holds for their children.
While there is no hard and fast rule as to how long a parent has to wait to file a custody modification petition since the last order, many attorneys (incorrectly) believe at least a year must pass (this is one aspect of the child support modification statute, not the physical custody modification statute). On the other hand, rarely does a great deal of change happen in under a year or less to make your evidentiary showing possible. However, this is not always the case.
As reflected in the last three (3) bullet points, the second way to effectively present a case that results in a modification of physical custody is a “smoking gun” event that occurred. This “event” may allow for a change in physical custody of the children since the last custody order in a very short period of time after the current order issues. Certainly, a parent’s arrest and charge with a serious crime (or misdemeanor, if it could place the children at risk, such as a DUI where the children were in the car) may all but seal the deal for physical custody modification.
Further, while both children should have access to both parents, and no parent wishes ill to the other parent (or at least they should not), if a parent is in an accident or otherwise incapacitated, this is certainly a basis for modification of physical custody of the children, if by effective default. A biological or adoptive parent trumps a grandparent or other relative proxy for the custodial parent and cannot obtain de facto custody by the custodial parent’s misfortune.
Ciyou & Associates, P.C. has skilled attorneys that are skilled advocates when it comes to working up a modification case and utilize a wide array of legal tools to help you have your best chance at presenting admissible evidence to show a substantial change in circumstances since the last physical custody order and that modification is in the children’s best interests. Each tool is case-dependent and may range from a request for an in-camera interview of the children by the judge to a custody evaluation (topics beyond the scope of this blog).
We hope you find this blog educational and become a more educated legal consumer for you and your children. This blog was written by attorneys at Ciyou & Associates, P.C. who handle a wide array of all types of domestic and related matters. It is intended as general information and is not to be relied upon in any given situation. Additionally, it is not intended as legal advice. It is an advertisement.
- Indiana Code section 31-17-2-21(a)(1), (2).
- Indiana Code section 31-14-13-2 (paternity physical custody modification statute).
- The modification statute references and instructs the court to consider in a modification action all matters it considered in the initial custody proceeding. However, the factors must reflect a change in them since the last controlling custody order. For reference, the initial factors a court considers in its original custody order are as follows: “The court shall determine custody and enter a custody order in accordance with the best interests of the child. In determining the best interests of the children, there is no presumption in favor of either parent. The court shall consider all relevant factors, including the following: (1) the age and sex of the child. (2) The wishes of the child’s parent. (3) The wishes of the child, with more consideration given to the child’s age if the child is at least fourteen (14) years of age. (4) The interaction and interrelationship of the child with: (A) the child’s parent or parents; (B) the child’s siblings; and (C) any other person who may significantly affect the child’s best interests. (5) The child’s adjustment to the child’s: (A) home; (B); school; and (C) community. (6) The mental and physical health of all individuals involved. (7) Evidence of a pattern of domestic or family violence by either parent. (8) Evidence that the child has been cared for by a de facto custodian, and if the evidence is sufficient, the court shall consider the factors described in section 8.5(b) of this chapter. (9) A designation in a power of attorney of: (A) the child’s parent; or (B) a person found to be a de facto custodian of the child.”
- There may be the ability to present evidence prior to the last physical custody order if it relates to a pattern.