Categories: Divorcefamily-law

What is a Motion to Modify Custody?

If your child custody arrangement isn’t working out – or if it’s no longer in your children’s best interest – you may be able to file a motion to modify custody.

But what is a motion to modify custody, and how does it work?

Here’s what you need to know.

What is a Motion to Modify Custody?

A motion to modify custody is a legal document your attorney can file with the court on your behalf. (A motion is a request for the court to do something.)

The judge assigned to your case will look at your motion and make a decision based on what’s in your child’s best interests. In order to file a motion to modify child custody, you have to have the legal grounds to do so.

What Are the Legal Grounds to Modify Custody?

If you want to change your custody agreement, you’ll have to show the court that there’s been a change in circumstances. That change in circumstances must make your current agreement unworkable. Some common reasons people file a motion to modify custody include one parent:

Needing to relocate because of work or personal reasons
Exercising religious practices that are harming the child
Putting the child in a dangerous environment
Preventing the other parent from seeing the child
Failing to properly care for the child

These aren’t the only reasons people have for changing their custody arrangements – they’re just some of the most common. If you feel your circumstances (or your child’s circumstances) have changed enough to justify asking the court to modify your order, talk to your attorney. He or she can explain how the court might view your request, as well as file the appropriate paperwork.

Related: What is full custody?

When Can You Ask the Court to Modify Your Custody Arrangement?

You can ask the court to modify your custody arrangement any time there’s a significant change in circumstances. As long as the judge in your case has issued a custody order, you can file a petition to change it.

What Should You Include if You Ask the Court to Change Your Agreement?

If you would like the court to change your agreement, you’ll need to come up with an alternative. Prepare a plan that details scheduled visits and all the other changes you want to make. That way, your attorney can get it on the judge’s desk – and the judge can make a decision based on facts.

You’ll have to explain why you think it’s necessary to change the existing order. If your child’s other parent disagrees, he or she will have the opportunity to say so (and explain why).

Your attorney will be able to give you guidance on modifying your custody agreement, and he or she might even suggest that you talk to a mediator so you and your spouse can agree.

Does Your Child Have Any Say?

In some cases, the courts will take the child’s preference into consideration. Typically, though, the judge won’t allow very young kids to state a preference for living with one parent or the other. If your child wants to have a say in the matter and the court allows it, the judge will consider your child’s:

Age
Maturity level
Intelligence level
Motivations

What if the Proposed Plan Isn’t in Your Child’s Best Interests?

The court’s main concern is always the best interests of the child. That means that if you submit a proposed change that isn’t best for your child, the court can – and will – kick it back and tell you to try again. Remember, the legal system in California is set up to protect children… and the law recognizes that a child has a right to both of his or her parents.

Do You Need to File a Motion to Modify Child Custody?

If you need to ask the court to change your custody agreement, we may be able to help you. Call us at 209-546-6870 to schedule a consultation with a caring, compassionate and knowledgeable Stockton divorce attorney now. We can also help you with issues related to parentage and child custody, spousal support and other divorce issues.

Angie