Skip to main content

Modification of custody

The party seeking a modification of custody must show that conditions have substantially changed or that the other parent has failed to comply.

Elizabeth Stup | Mar 23, 2020

Co-Parenting in Crisis

Tips for Co-Parenting during the Corona Virus Emergency The Corona Virus or Covid-19 pandemic is a unique event for everyone. No one could have anticipated that most of the world would be under travel restrictions for an extended period of time. Court orders for custody and visitation were not drafted with this type of scenario in mind. A current court order is effective unless it is modified by a court. Parties can enter into temporary agreements in the best interest of their children. Everyone needs to exercise their best judgment and not use this emergency situation as an excuse to ignore existing court custody and visitation orders. In certain circumstances, there may be a legitimate reason to make temporary changes to the parenting access schedule. There may be a child or other family member with a compromised immune system or a pre-existing condition that makes them more susceptible to the Corona Virus. If the child is going back and forth between residences, this may put the family member at increased risk. If this is the case try to talk/text/email the other parent and explain the reason for limiting access at this time. Offer to switch weekends/weeks or offer extra time during the summer to make up the missed time. Reassure the other parent that you are following the Corona Virus guidelines at your home and keeping the child safe. Try to work out a schedule of FaceTime, Skype, Duo or other video conferencing with the child, so that the other parent can see that the child is safe and healthy. If you are the parent who is not getting your parenting access during this emergency, use phone time or video conferencing to share positive messages with your child. Do not tell the child that the other parent is keeping the child from you. Use this time to play a video game, read a story, sing with your child or just talk. This is a good time to try some new ways of approaching co-parenting issues. If talking with the other parent is difficult, try to communicate by text or email. If you and the other parent have trouble communicating without getting angry, maybe you can have a trusted and reasonable family member or friend negotiate with the other parent. Let the other parent know that you are following the current recommendations and staying at home. If you are limiting your home to family members only, share that information with the other parent. The other parent may be concerned about the child’s exposure to the virus if you are someone who normally socializes with many friends and family in your home. While who you have in your home may not be the other parent’s business, with the risk of exposure to the virus right now, many parents are legitimately fearful. Discuss how you will decide when normal parenting access will resume. The government has recommended a 15 day isolation period, so maybe you and the other parent can agree to resume regular exchanges after the 15 day period has expired, or when the state of emergency in Maryland has been lifted. It is possible that you may only miss one or two of your parenting weeks. Then you can try to work out when you will get the missed access time back. Maybe you can get extra time during the summer, or you can have an extra access period in the next 30 days. If none of this works, you will at least have a written record that you tried to work with the other parent when you finally get a hearing in front of a judge on a Petition for Contempt. If you used a friend or family member to help negotiate with the other parent, that person may be a witness for you if you are unable to work out an agreement. High level Co-Parenting Covid-19 is creating a difficult situation for everyone. If the other parent is a health care provider or law enforcement, it is probably safe to assume that the parent is aware of the most recent recommended precautions for keeping loved ones safe. Make this an opportunity for high-level co-parenting. Ask the other parent what is being recommended to keep your children safe so that you can be practicing the best safety measures in your home. Discuss what might be the best practice for exchanges of the children, whether it might be a good idea to switch weeks or agree to a future make up week during the summer. Offer to keep the children if the other parent needs to work more shifts due to the emergency or needs to get some rest. If the other parent wants to exercise the normal parenting access schedule, you are legally obligated to do so, unless you have some evidence that the other parent may be careless with the children's health. Keep calm and remember that communication is the key to any successful co-parenting relationship. Dealing with Missed Parenting Access in the Court System If the other parent refuses to negotiate or at least discuss when the normal parenting access schedule will resume, or how make up time will be determined, then go ahead and file a Petition for Contempt. The courts are currently closed to the public, but the forms are available online at https://www.courts.state.md.us/legalhelp. The courts are supposed to install drop boxes for members of the public to file documents while the courts are closed. Be prepared to wait for the court to act. Even if we were not under this virus issue, the courts may take months to get to your case. What the judges would "typically do" may be a lot different 6 months or a year from now when you finally get a hearing about this loss of parenting access during this major health crisis. Some judges may look at this situation as being outside of any normal circumstances. In some cases, judges may give make up time and in others, they may feel that a parent was justified in making a decision based on the health crisis.

Carina Castaneda | Jan 28, 2019

Modification of Child Custody or Visitation Orders

A modification is *necessary or proper* in the child*s best interests. Since the restraining order had expired, a modification is *necessary or proper* in the child*s best interests. Generally, a custody or visitation order may be modifiable during the child*s minority whenever the court finds a modification is *necessary or proper* and consistent with the child*s best interest. I suggested reaching out to the opposing party*s attorney prior to filing any motion to see if a stipulation for more visitation time would be available. This not only minimizes legal fees and court costs but is consistent with the duties required in family law of both parties to act in good faith. If there is no agreement and court intervention is the only means to an end, I will always note in our motion that best efforts were made in order to prevent judicial intervention and increased costs. Depending on the acts or behaviors of both the attorney and opposing party, sanctions for legal fees and costs may be requested. *Significant change of circumstances* The standard governing custody adjudications requires the court to review and conclude what is the child*s best interest. However, if the custody order has been deemed *final**usually a Judgment has been filed, then a showing of *significant change of circumstances* will be needed. The policy behind this is that modifications to custody or visitation create instability and security is essential to the a child*s welfare. The paramount goal is to preserve the need for continuity and stability in custody arrangements, unless some significant change in circumstance reflects a different arrangement would be in the child*s best interest. As for my client, there is no final custody order so the best interest standard is the applicable law. Unless the order is permanent or final, the court is only required to make an initial custody determination of what custody order is consistent with insuring continuity and stability for the child. The burden of proof must be on the party requesting the change *my client.

Anthony Gerard Buono | Nov 7, 2017

Modification of a Custody Order: Poor Parental Judgment

Poor Parental Judgment Poor parental judgment can take on a variety of forms but generally it consists of a parent placing his or her own interests over those of the child. As parents we are supposed to place the needs of our children ahead of our own. These means not sharing with children the anger and pain that accompanies parental conflict. Poor parental judgment can include any number of stupid, selfish, thoughtless and mean things that parents do to their children or to the other parent. For example, a parent degrading the other parent in front of the child or discussing inappropriate subjects in front of the child is poor parental judgment. Examples In one case, a mother was awarded custody in part because the father repeatedly discussed inappropriate subjects and disparaged the mother in front of the child. In the eyes of the court, he was unable to place the child's needs ahead of his contempt for the mother. In another case the mother degraded the father in front of the children. The court found that this conduct showed she lacked insight and judgment since her statements about the father upset the children. In a third case, the mother contacted the State Police and incorrectly reported that the father was driving while intoxicated with one of the children in his vehicle. She also falsely reported the father to Child Protective Services. These acts plus other nonsense cost her custody of her children. Insight into Mistakes Now, everyone makes mistakes, so a court must consider if a parent has insight into the inappropriateness of their poor behavior or remorse for such. If a parent makes mistakes or has disputes with the other parent, they must isolate these errors or disputes and not involve the children or let these disputes impact the children. If they can do this and the children are not affected, a court may be able to overlook such. When a parent cannot see the error of their ways, this can compound their misconduct. A court will consider not only the parent's poor parental judgment but his or her lack of remorse or insight into the inappropriateness of his or her behavior. For example, in one case, the court found that the mother, who among other things had made unfounded CPS reports against the father, lacked insight into the importance of the children's relationship with the father and the impact that her behavior had on the children. On the other hand, in another case the Court found that although the father's behavior was troubling at times, he, unlike the mother, "manifested a markedly greater ability to isolate his disputes with the mother without involving or impacting the children." Based upon these circumstances, the court modified residential custody to the father even though it was "apparent that the mother loves her children and is capable of meeting their physical needs."

Anthony Gerard Buono | Nov 7, 2017

Modification of Custody: Best Interests Analysis and the Totality of Circumstances

The Best Interests of the Child The primary focus of a custody determination is ascertaining what is in the best interests of the child, and what will best promote the child's welfare. A best interests analysis generally involves the examination of several factors, including the relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child and foster a relationship with the other parent. After reviewing these factors, the court must consider the totality of the circumstances and place appropriate weight on each factor considered. For example, in one recent case the court considered a constellation of factors including the parties' ability to meet the needs of the children, the parties' behavior, the ability and desire to foster a relationship with the other parent. Ultimately the court awarded custody to the father weighing the totality of these circumstances and concluding that the father had a "manifested a markedly greater ability to isolate his disputes with the mother without involving or impacting the children The Totality of the Circumstances There is no empirical formula to a totality of circumstances analysis. It is in the discretion of the judge to determine how much weight to give each factor. The law merely gives insight into which factors should be considered. How to apply them and what to do based upon this analysis does not follow hard and fast rules. The relative fitness, stability, past performance, and home environment of the parents, as well as their ability to guide and nurture the child and foster a relationship with the other parent all are rather subjective factors. So is the totality of circumstances analysis. This is why a parent considering a change of custody, or faced with the other parent asking for a change of custody, should engage an experienced domestic relations attorney promptly.

Anthony Gerard Buono | Oct 31, 2017

Modification of a Custody Order

The Parties' Agreement The parties' agreement to alter their parenting schedule is a change of circumstances sufficient to warrant a modification of an existing custody order. So, if the parties submit a proposed order modifying an existing order on consent, a court most likely will go along with such and modify the existing order. However, before a court will order such a modification, a court will consider if the proposed modification in is the best interest of the child. Where parties cannot agree regarding custody, the parties' alteration of their parenting schedule still is a change of circumstances sufficient to warrant a modification of an existing custody order. For example, in one case the court found that the parties effectively abandoned the parenting schedule and crafted various schedules as their circumstances changed. Based upon this change of circumstances, the court ordered a further modification of the parenting schedule. Change in a Party's Work Schedule Another change of circumstances that is sufficient for a modification of a custody order is a change in a party's work schedule. This may at the least warrant a change in the parenting schedule to reflect the parents' work schedules. This also may be in some cases a basis to change the custodial parent if one parent is no longer able to provide adequate care or one parent now is much better positioned to care for their child because of their new work schedule. Other Changes There are many other situations that can present change of circumstances that may be a sufficient basis for a modification of a custody order. These include, but are not limited to, domestic violence in the household involving the children or witnessed by the children, false allegations made by one parent against the other parent, a parent alienating a child from the other parent, as well as a parent's inability to control a child. It is important to keep in mind that not every change in circumstances will require a modification of a custody order. A judge must be convinced that the change in circumstances demonstrates a real need for a modification in order to insure the continued best interest of the child. With this legal standard, there are many changes in circumstances that may be significant, but do not justify changing or modifying custody.

Keith R Havens | Jun 24, 2016

Considerations for Modification of Physical or Legal Custody in Maryland

Initial Considerations If you are considering filing for a change in physical or legal custody of an existing order, you need to be aware of and take into consideration the analysis that the court will employ. Determining whether you have a likelihood of success can avoid unnecessary monetary and emotional costs. When faced with a request for change in custody, the court must employ a two-step analysis. Gillespie v. Gillespie, 206 Md. App. 146, 170, 47 A.3d 1018 (2012). First, the court must assess whether there has been a material change in circumstances. Id. A change in circumstances in material only when it affects the welfare of the child. Id. at 171. Second, if the court finds that there has been a material change in circumstances that affects the welfare of the child, the court must then consider the best interests of the child as if the proceeding were one for original custody. Id. at 170. The burden is on the moving party to show both that a material change in circumstances affecting the welfare of the child has occurred and that it is now in the best interests of the child for custody to be changed. Id. It has been widely held that "[t]he custody of children should not be disturbed unless there is some strong reason affecting the welfare of the child." Sartoph v. Sartoph, 31 Md.App. 58, 354 A.2d 467 (1976). In Sartoph, the Court of Appeals stated: To justify a change in custody, a change in conditions must have occurred which affects the welfare of the child and not of the parents. The reason for this rule is that the stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change. In short, when all goes well with children, stability, not change, is in their best interests. Id. at 66-7. In addition to stability, it has been well established that "[a] litigious or disappointed parent must not be permitted to re-litigate questions of custody endlessly upon the same facts, hoping to find a chancellor sympathetic to his or her claim." McCready v. McCready, 323 Md. 476, 593 A.2d 1128 (1991). Applying the Considerations to Your Case It is important to note that the court will not simply look at the facts from the perspective of either party. Rather, the material change in circumstances must affect the welfare of the child. Even if the court determines that a material change in circumstances has occurred, this does not mean that the party seeking the change wins. Rather, the court must then treat the matter as if it were an intial case and determine the custodial arrangement that is in the best interests of the child. Before taking an action, you would be well advised to seek the assistance of an attorney experienced in this field of law. An experienced attorney should be able to advise you as to whether he or she thinks that you will be able to establish that a change in circumstances has occurred and, if so, the likelihood that the court will alter the custodial arrangement. Obviously, no one can give this advice with certainty.

Adam W. Bull | Jan 7, 2015

Issues in determining if a parent can relocate with a child

Introduction In todays mobile society it is not unusual for a parent to be faced with having to or wanting to relocate after a divorce or separation. Whether that parent can move with the child or children is much more complex issue based upon a number of factors. Prior Custody order v no prior Custody Order If there has already been involvement with the Courts and there has been a custody order entered, often times this order will make reference to possible relocations and whether they will be allowed. In addition, if one parent has been granted primary custody, there is a presumption that the relocation is properr and this shifts the burden of proof to the other party to rebut the move. If there is no prio order or if the parties have joint or shared legal custody, there is no presumption and the parties share the burden of proof for their respective positions. Factors The Courts will look at a number of factors like: the reason for the move, is it mandatory or voluntary, how far away is it, How will the move effect the non moving parties contact or access to the child, what opporunties for the child are available in the new location that are not available in the old location and vice versa. An experience attorney can gather and present evidence on these and other factors to make an argument in favor of or against a move. Conclusion In the end, each case is different and has its own set of fact. Judges will look at all of the competant evidence and make a decision. Moves that are voluntary and will greatly reduce the amount of time for the non moving party are less likely to be granted. You should always consult an attorney before deciding to move and dont presume that you can move with your child automatically as this may give rise to the other party seeking and receiving emergency custody if you go out of state.

Scott Michael Weiss | Jan 7, 2015

Factors the Court must consider if you seek to relocate with your minor child(ren)

a. The nature, quality, extent of involvement, and duration of the child's relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child's life. b. The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child. c. The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court. d. The child's preference, taking into consideration the age and maturity of the child. e. Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities. f. The reasons each parent or other person is seeking or opposing the relocation. g. The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child. h. That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations. i. The career and other opportunities available to the objecting parent or other person if the relocation occurs. j. A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation. k. Any other factor affecting the best interest of the child or as set forth in s. 61.13.

Jennifer T Miller-Morse | Nov 22, 2014

Tips for Easing Your Child’s Transitions

Allow adequate hand-off time A hasty transition can increase a child's anxiety. Schedule enough time for the drop-off to anticipate the child's need for reassurance and comfort. Leaving your child while they are upset might exacerbate the anxiety and make the next transition even more difficult. Provide transitional objects If your child has not already done so, choose a favorite toy or stuffed animal to be the designated escort. Taking along a familiar object can significantly reduce a child's anxiety when changing homes.. Acknowledge feelings No matter how old your child is or how you think they should be handling your divorce, acknowledge that this is how they feel right now. It's hard, and they are not likely to be easily talked out of their suffering. Control your emotions If you have strong feelings about your child going to spend the night or the weekend with your ex, keep those feelings to yourself. Children have a natural desire to take care of their parents, so leaving you in a puddle of tears is not likely to make the transition easier. Resist the urge to give in The only way to make transitions easier for children is so establish a routine. Things get easier after a while, but not if you don't insist and persist through the initial rough patch. Understand that you have a court-ordered agreement and you have no choice other than to help your child feel comfortable leaving you for a period of time. Look carefully at the situation If your child is really distraught over going to your ex, take a closer look at what the problem might be. If you suspect there may be abuse, neglect or any other inappropriate or harmful behavior going on, speak to your attorney about your suspicions immediately.

Avvo child custody email series

Sign up to receive a 5-part series of useful information and advice about child custody law.