With the increase in mobility and job insecurity in recent years, parental relocation has become a common issue for parents after a divorce. The reality is that the life circumstances of every family will change with some frequency, so it’s not uncommon for a custody order to become ineffective for a family only a couple years after a divorce is finalized. However, most people in this situation do not know their rights or the procedures involved with modifying a child custody agreement. Before seeking out a modification – before a divorce even – it is helpful to have an understanding of the options and procedures for child support and custody modifications. In this three-part series, we will discuss: 1. Modifications for parental relocation, 2. Modifications when a mature child wants to live with the other parent and 3. Modifications resulting from the changing needs of the child.
What is a Modification?
As the name implies, a modification is a change. In the context of child custody, it is an official, legally binding change to the original child custody order or agreement.
When considering a modification of custody, the threshold issue is, has there been a substantial change in circumstances that materially affects the welfare of the child. If the answer is no, then you cannot file a modification action without the consent of the other parent. If the answer is yes, then the next question is, is a modification in the best interest of the child. If there has been a material change and the modification would be in the best interest of the child, then you have grounds to file a modification action.
Obviously, one of the parents relocating is a substantial change in the family’s circumstances. Regardless of whether the parent with primary physical custody is the one relocating, the physical distance between the two parents will create significant challenges for a parenting plan.
Since a long distance relocation is a substantial change in the child’s circumstances, if one parent believes that it is in the best interest of the child to modify custody, then there are grounds to file a modification action.
Obtaining a Modification
As with any family law issue, there are two ways that a modification can be accomplished, either both parties can agree, or a trial can be held after which, the judge will decide what is in the best interest of the child.
The first step is to try to come to an agreement with the other parent to modify the current custody or visitation arrangement to suit the needs of the parents and the child. If you think you can reach an agreement, a skilled family law attorney can quickly reduce this agreement to writing in a way that will hopefully reduce future conflict from unforeseen issues.
If the parents cannot agree, then it will likely be time to hire an attorney and file a modification action. Once the modification action is filed, the first step will generally be to schedule a mediation. Most courts will require that the parents attend a mediation prior to seeking any sort of hearing in front of the judge. Having an attorney represent you at a mediation is very important as a mediator is not allowed to give either side legal advice.
Your First Step
Regardless of whether or not the other parent agrees to the move, your first step is the same: talk with an experienced lawyer. Even if everyone agrees to the relocation, you will need legal help to make sure your interests are protected and all of the legal details are in order.