Modification of Custody or Visitation FAQ

These frequently asked questions explain your options for changing an established custody or visitation agreement.

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Under what circumstances can custody and visitation orders be changed in the state where they were obtained?

What qualifies as a substantial change in circumstances?

After a final decree of divorce or other order establishing custody and visitation is filed with a court, parents may agree to modify the custody or visitation terms. This modified agreement (also called a "stipulated modification") can be made without court approval. However, if one parent later reneges on the agreement, the other person may not be able to enforce it. Thus, it is generally advisable to obtain a court's approval of stipulated modifications. Courts will usually approve modification agreements unless it appears that they are not in the best interests of the child.

If a parent wants to change an existing court order and the other parent won't agree to the change, the parent wanting a change must file a motion (a written request) asking the court that issued the order to modify it. Usually, courts will modify an existing order only if the parent asking for the change can show a "substantial change in circumstances." This requirement encourages stability and helps prevent the court from having to deal with frequent and repetitive modification requests.

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Here are some examples:

• Geographic move. If a custodial parent intends to make a significant geographic move, it may constitute a changed circumstance that would cause a court to modify a custody or visitation order. In that situation some courts switch custody from one parent to the other, although the increasingly common approach is to ask the parents to work out a plan under which both parents may continue to have significant contact with their children. If the parents can't reach an agreement, courts in some states will permit the move unless it is shown that the child will be adversely affected. In other states, courts will carefully examine the best interests of the child and make a decision about which parent should have custody.
• Change in lifestyle. A parent can obtain a change in a custody or visitation orders if substantial changes in the other parent's lifestyle threaten or harm the child. For example, if a custodial parent begins working at night and leaving a nine-year-old child alone, the other parent may request a change in custody. Similarly, if a noncustodial parent begins drinking heavily or taking drugs, the custodial parent may file a request for modification of the visitation order (asking, for example, that visits occur when the parent is sober, or in the presence of another adult). What constitutes a lifestyle sufficiently detrimental to warrant a change in custody or visitation rights varies tremendously depending on the state and the particular judge deciding the case. For example, most courts do not consider a new same-sex relationship to be a lifestyle change that could be detrimental to the children, but in some conservative areas that is a real possibility.

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