Family Law

Key Factors in Modifying Child Custody

Changing your custody arrangement.
By Kristina Otterstrom, Attorney
Updated: Apr 9th, 2015

A child's best interests are central to any custody decision, but those needs and interests—and a parent's ability to meet them—may change over time. Generally, either parent can ask a judge to modify custody if circumstances have changed enough to justify altering parenting arrangements.

A Parent's Emotional and Physical Stability

Whether a parent can provide a child with stability is a crucial factor in determining custody. Children thrive when they know what to expect and that they can count on a parent. A court may modify custody if a custodial parent’s life is chaotic or in constant flux. For example, a change in custody may be appropriate if the parent with physical custody does any of the following:

  • moves frequently
  • is emotionally unstable
  • abuses drugs or alcohol
  • frequently enters new relationships or marriages
  • frequently changes jobs or has extremely unpredictable working hours, or
  • fails to make a child available for visitation with other parent.

A court won’t modify custody just because one parent could provide a more stable living environment than the child’s other parent. Instead, a judge will modify custody only if some circumstance materially changed since the original custody order was issued. A court can alter parenting arrangements if the changes to a custodial parent’s environment are substantial, and the child’s best interests would be served by a custody modification.

Child’s Academic, Emotional, or Physical Needs

Major changes to a child’s school performance or emotional or physical health can justify a custody change. For example, a child’s failing grades or frequent hospitalizations for untreated illnesses may be enough to award a noncustodial parent sole physical custody. Perhaps one parent has better access to top medical care for a child recently diagnosed with cancer. Or one parent may live in a school district that can better support a child’s dyslexia and associated academic struggles. While a poor grade in one academic subject or recurrent ear infections won’t justify a change in custody, if a child’s overall wellbeing deteriorates, it may warrant a custody change.

Parent’s Relocation

A noncustodial parent may use a custodial parent’s relocation as an argument for changing custody. However, courts rarely adjust custody based solely on a parent’s relocation. A child’s best interests are always the primary factor in custody decisions. A change to custody may be appropriate if a custodial parent’s move will drastically reduce the parent’s time with the child, the child’s relationship with siblings or half-siblings, or the child’s relationship with a non-custodial parent or extended family. Ultimately, a judge will look at the potential effects of a move on a child’s emotional and physical health.

Child’s Preferences

Children may have a say in custody cases once they reach a sufficient age, intelligence, and maturity. This age varies from state to state and case to case. Some states will consider the wishes of an emotionally mature 11 year-old, while other states won’t consider a child’s preferences if the child is under 14. Even then, a court has tremendous discretion with how much weight to give a child’s wishes.

For example, a court may give significant weight to an emotionally mature teenager’s request to reside with one parent over the other, but little to no weight to a 9-year-old’s request to live with the parent who has video games. Courts are careful not to put children in the middle of their parents’ custody battles. A child will almost never testify in a custody case, but their wishes can be heard through a court-appointed person, such as a guardian ad litem or custody evaluator.

Abusive or Violent Situation

A child living in an abusive or violent situation should be removed immediately. If your child is being sexually or physically abused in the custodial parent’s home, you can call your local police and file an emergency motion to modify custody. Courts take abuse claims seriously. Parents can lose custody even if they’re not committing the abuse, but are facilitating a situation where a child is being abused or in danger of abuse. This can include having an abusive boyfriend or girlfriend or sharing a household with an abuser.

Questions for Your Attorney

  • Can I prevent the custodial parent from moving out of state with my child?
  • My ex has sole custody of our child, but is constantly moving apartments and forcing my child to switch schools. Can I seek custody based on my ex’s frequent moves?
  • My child’s other parent lives a lifestyle I don’t approve of. Can I get custody transferred to me based on the lifestyle my ex leads?

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