October 11, 2021
It is generally recognized under family law that there are times when circumstances change, such that one or both parents may wish to have a parenting time order changed to accommodate the newly changed circumstances. It does not make any difference under the law whether these changes are for better or worse – rather, if the changes warrant modification under the law, there is a process by which a parent can accomplish this.
For a court to grant a modification request to change the time-sharing arrangement, however, the parent making the request must provide evidence of a substantial, material, and unforeseeable change in circumstances.
To show a substantial, material, and unanticipated change in circumstances, you must show that this event or circumstance occurred since the entry of the last order. In deciding whether to grant the request to modify the time-sharing order, the court will consider what is in the best interest of the child to determine whether a substantial change in circumstances has occurred to justify a modification.
What Is in the Best Interest of the Child?
All states use a “best interest of the child” standard in addressing and resolving issues related to children. According to the Journal of the American Academy of Matrimonial Lawyers, this is a rather amorphous and, in some states, a nebulous standard, and one, as a result, gives judges plenty of room to impose their subjective beliefs about what’s best for children. Notwithstanding the pros and cons of the best interest of the child standard, there are, however, widely accepted factors that judges apply across the states to determine what is in the best interest of the child, and these are:
Age of the Child.
For a long time in this country, there officially existed the “tender years” doctrine in which the law favored younger children to live with the mother. However, this doctrine has gradually lost favor in the application of the law, but some judges still hold on to it and may rely on this belief in determining initial or subsequent modification of a time order, especially if the mother is nursing the child.
Each Parent’s Living Situation.
Where and how each parent lives is a consideration though this sometimes creates an odd situation where courts use the same factor for two different and opposite circumstances. For example, a parent who stays in the family home gains custody of the child simply because this allows the child stability and continuity in their daily lives.
At the same time, a parent with custody of the child is awarded the family home for the same reason. Be that as it may, where and how one lives must be at least conducive to raising a child and if you want to get primary custody of your child, make sure you have that taken care of first.
Relationship and Willingness to Support in Raising Children.
A judge will examine your history with each other as a couple to determine which one of you has been cooperating when it comes to the needs of the child and who has not been cooperating. The judge may also want to know things such as whether you bad-mouth your spouse to the child or whether you have interfered with time-sharing in any way.
If you are more cooperative than the other parent, then chances are you will have an advantage in a custody dispute. The opposite is also generally true, so if a parent attempts to alienate a child from the other parent, then it is likely a court will use this against them in addressing the question of what is in the best interest of the child.
Relationship With a Child.
It is often the case that a parent is not involved much with their kids’ lives but suddenly develops a strong desire to get involved and to spend more time with the child once the marriage has ended. Whether this desire is genuine or not is something a judge will have to determine and respect if it is, but if a judge finds that desire to be disingenuous, then the judge will likely use it against the parent.
Children’s Preferences.
If a child is old enough—and this is usually 12 years or so old or more—a judge may talk to the child and find out what the child’s preferences are regarding the issue of parenting time—or any issue for that matter. This, however, varies by state as some allow a judge to make such inquiry from the child, others do not allow having children’s views solicited to render a decision on custody or time-sharing.
Continuity and Stability
Judges are inclined to maintain the status quo when it comes to children because most of them believe that it is not good for a child to add on more changes to the already traumatic transition of divorce. In this case, the parent who makes a persuasive case that things are just fine as they are will likely maintain the status quo rather than see a judge modify a time-sharing order.
Abuse or Neglect.
If there is clear evidence that a parent has abused or neglected the child, a judge will immediately stop or limit that parent’s contact with the affected child.
How Can I Obtain Time-Sharing Order Modification?
Either parent may petition the court in writing to have the court modify a time order. However, when you file a petition to modify a time order, the law does not guarantee that a judge will order what you request.