You may have heard of the best interest rule in the world of child custody. But how about the changed circumstances rule?
Quite often, parents continue to butt heads with respect to their children far after a final custody order. Conflict between the parents can unfortunately often lead to litigation. But unless a parent can demonstrate a significant change of circumstances so affecting the child that modification is essential to the child’s welfare, that parent’s request will likely be denied. They may also be exposed to paying the other parent’s attorneys fees.
We will explore the “changed circumstances” rule and certain exceptions in this article.
Why does the law require a change of circumstances to modify a permanent custody order?
If your initial custody determination was litigated, you may recall the trial court using a best interest standard. The standard requires the court to consider the child’s health, safety and welfare. The court must also assure that the children have frequent and continuing contact with both parents, except where contact would not be in the child’s best interest.
After a final judicial custody determination, the changed circumstances rules kick in. The reasoning is articulated in the seminal case of Marriage of LaMusga: Courts should not reexamine a decision that a particular custodial arrangement is in the child’s best interest but, rather, should preserve the established mode of custody, unless “some significant change in circumstances indicates that a different arrangement would be in the child’s best interest.”
In plain English? The court recognizes the need for continuity and stability in custody arrangements. There is a presumption that harm may result from a disruption of established patterns of care and emotional bonds. Therefore, in most cases, a significant change of circumstances must be demonstrated before the court will determine whether the request is in the child’s best interest.
Some Exceptions
The changed circumstances rule is inapplicable where parent’s share joint physical custody and one wishes to move with the children.
The rule is inapplicable when a request does rise to a change from joint to sole custody, or vice versa. In other words, if a parent requests an increase in time share that does not amount to a change in physical custody from sole to joint custody, or vice versa, that parent need not demonstrate a significant change of circumstances. Courts have also found that requests such as changing schools or deciding orthodontic care do not require the changed circumstances rule.
The Zarin Law Firm provides this article for educational purposes only and not specific legal advice. If you wish to speak with an experienced family law attorney, feel free to contact us to schedule a consultation.