When a Massachusetts couple split up, they agreed to a child custody order for their two children under which the father had the kids from 4 p.m. Sunday until after school on Wednesdays, and the mother had them from after school on Wednesdays until after school on Fridays.
The agreement also called for the kids to alternate weekends. This resulted in the mother dropping the children off with their father by 6 p.m. on Sunday during weekends they spent with her, while on their father’s weekends, they spent Sunday nights at his home.
At some point, the mother petitioned the court to modify the order because, under the current schedule, the children spent more time at their father’s house but wanted a schedule that equalized their time with each parent.
At trial, the older child testified that both kids felt the current arrangement was unfair and that alternating weekends was inconvenient for them. But a court judge refused to modify the arrangement, finding that while it was clear both children loved both parents “equally and dearly” and that they were both of an age at which they could possess discretion, there was no showing of a “material change in circumstances” that justified changing the custody arrangement.
As the judge stated, a change in circumstances becomes material when it “destabilizes” custody, not just when it creates minor inconveniences.
Though this is just one case from one state, it represents a broader reality that courts take custody arrangements seriously and are hesitant to disrupt them on a whim. So when might a court be willing to modify your custody order? Here are a few scenarios in which seeking a modification order could be worthwhile.
First, despite the result in this case, some courts will respect the preferences of older children when there’s valid justification. If a kid simply doesn’t like the rules of one household — for example, the other parent allows more screen time, lets them stay up later, or is less strict about junk food — a court probably won’t consider a modification. But if the arrangement disrupts school or important extracurriculars, the court may be willing to consider a change.
A court might also consider a modification if a parent needs to relocate and the current arrangement would be impracticable following the move. In such an instance, the court will determine an arrangement that’s in the child’s best interests. If the relocating parent is the one with custody, the court may allow the child to go with them but order virtual visits and allocate more holiday and vacation time to the other parent.
Similarly, if the non-custodial parent is relocating, the court could potentially change visitation so that the non-custodial parent doesn’t see the children as frequently — as it may disrupt their schedules — but gets longer visits as well as virtual visits.
Courts may additionally modify custody agreements if a child’s needs change. For example, if a child develops serious health issues and one parent is better equipped to manage them than the other one, a court may adjust arrangements accordingly.
Along similar lines, if a parent’s circumstances change — such as a parent who was previously battling drug or alcohol addiction but is now clean and sober, or a parent who was previously healthy and has fallen into addiction — custody and visitation might also be adjusted to either increase or reduce children’s time with that parent.
Meanwhile, if the parents are so uncooperative that they battle over every joint parenting decision, one parent refuses to follow custody or one parent is actively trying to turn the children against the other one, a court may step in and modify custody in order to create a more stable, equitable situation.
If you think your own situation justifies modification, contact a local family law attorney to discuss your options.
