When parents have been to court and both custody and visitation have been previously ordered, it can be hard to know when/if it is appropriate or the time is ripe to return to court concerning a modification of custody and visitation.
As with any court action, many factors go into determining whether or not the time is right and the action is “worth” pursuing. Those factors include court costs associated with filing a new legal action, costs of legal representation, chances of your success, possibility of having to pay for the other parties’ legal representation, and potential of having custody/visitation modified in favor of the opposing party instead of in your favor.
A substantial and material change in circumstances is required for a modification in custody/visitation to be warranted. This change of circumstances can vary case to case, but can involve a number of factors and can include a change of circumstances for either yourself or the other party. Some examples of how circumstances could change for the other party include the following: a parent on drugs, a parent’s change in living arrangements, a parent’s association with nefarious individuals, safety concerns regarding the child, the other parent’s mental state, the other parent’s fitness and ability to parent, a child not living with the primary physical custodian, the other parent is unable or unwilling to comply with the previously ordered arrangement, the other parent’s refusal to comply with the previously court-ordered custody/visitation arrangement, etc. Adversely, some examples of how circumstances could change/improve for yourself thereby potentially warranting a modification in custody/visitation could include the following: your completion of drug rehab and remaining sober for a period of time, your improvement of your living arrangements, the child lives with you instead of the other parent as the court had ordered, your move and/or inability to comply with the previously ordered arrangement, etc. These are just a few examples of common conditions that might warrant a modification in custody/visitation, but as with anything, circumstances vary and the potential for success is ultimately up to the judge as these actions are treated just like any other custody case and should be undertaken with the utmost care and with a qualified, knowledgeable attorney you trust. Modifications involve pleadings, court proceedings, motions, and a trial in front of a judge.
Parents are human and thereby the many factors of their living situation and ability to parent are prone to change over the duration of a child’s minority. An attorney can help you analyze your set of facts and determine if there has likely been a substantial and material change in circumstances as required for a modification in custody/visitation to be warranted. It should also be noted that a judge has the ability to award legal fees for your representation or make you responsible for the other parties’ legal fees, depending on the case. Therefore unmerited and unlikely modifications regarding custody and support should be avoided.