Family law

5 Factors a Court Considers when a Change of Custody is Sought

By March 17, 2021 No Comments

Parents in divorce settings often desire to obtain a change of custody. In some cases, the parents are able to mutually agree to a custodial change. In other instances, the parents are not able to reach an agreement regarding a change of custody. In that type of situation, the parent seeking to change custody must file what typically is known as a motion or petition with the court. The court then considers a variety of factors when considering a custodial change. These considerations are unique to each situation and custodial determinations are made on a case-by-case basis. In this regard, a parent needs to understand how the best interests of a child’s standards are applied in a change of custody setting. In addition, there are five fundamental factors a court considers when faced with a request to change custody:

  •   Application of the best interests of a child standard
  •   How much time elapsed from the last custody order?
  •   What change in circumstances warrant a change of custody
  •   What are the living situations of each parent?
  •   Is the parent seeking custody likely to encourage contact between the child and the other parent?
  • What is the preference of the child?

Application of the Best Interests of a Child Standard

In all states across the country, courts apply what is known as the best interests of a child standard when making custody decisions. The best interests of a child standard require a judge to consider the specific facts and circumstances of a particular case in which custody is an issue.


In ascertaining what is in the best interests of a child, a court considers an array of different factors. There are some factors that more routinely are used by a court in making a decision pertaining to the best interests of a child in a situation in which a change of custody is desired.


How Much Time Elapsed from Last Custody Order? 

One of the factors considered by a court when weighing and balancing a request to change a custody arrangement is how much time elapsed from the issuance of the last custody order. Some states have specific timeframes within which custody can be changed (in the absence of some sort of emergency).


Otherwise, there is a pervasive public policy that centers on maintaining a sense of stability for a child. Unnecessary gyrations regarding custody arrangements have the very real potential to negatively impact the overall stability of a child’s life.


What Change in Circumstances Warrant a Change of Custody?

A parent needs to demonstrate that a notable change in circumstances has occurred that supports a change of an existing custody order. Oftentimes, this is referred to as a material change in circumstances. Examples of a material change in circumstances include such issues as a current custodial parent laboring under substance use disorder or some type of debilitating health issue. A custodial parent who frequently interferes with the noncustodial parent’s parenting time can also be considered a material change of circumstances.


What are the Living Situations of Each Parent?

In determining the propriety of changing an existing custody arrangement, a court will want to examine the living situations of the parents. The court might order what is known as a home study of the residence of the parent seeking custody to get a full understanding of the living situation at that location.


Is the Parent Seeking Custody Likely to Encourage Contact Between Child and Other Parent?

A court will also examine which parent is most likely to encourage contact between a child and the other parent if granted custody. As a matter of public policy, courts favor a custodial parent who demonstrates an ability and willingness to ensure a child develops a meaningful relationship with the noncustodial parent.


What is the Preference of the Child?

Depending on the age and maturity level of a child, his or her preferences can be taken into consideration when a parent desires to change custody. A parent needs to understand that the laws do vary from one state to another when it comes to the role the preference of a child may play in changing custody.

A contested motion to change custody can prove to be a legally complicated and emotionally challenging endeavor. As a consequence, a parent seeking to change custody or a party defending against such an alteration typically is best served seeking legal representation.


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