Modification of Child Custody

Motions for modification of child custody orders are quite common. There are many situations that can lead to a parent wanting to modify a child custody order. Some situations include: child custody arrangements that are too vague, remarriages, and geographical relocations. These situations can lead a parent to seek to modify the child custody order by filing a motion with the court.

In Florida, to modify a child custody order, the parent who filed the motion to modify the child custody order must show a substantial, material, and unanticipated change in circumstances, and show that the modification of child custody is in the best interests of the child. In considering the motion for modification of child custody, the court will first have to decide if there has been a substantial change in circumstances before even considering that the modification of child custody will be in the best interests of the child.

In considering a motion to modify child custody, there is a tension that exists between balancing the court’s interests of protecting the welfare of a child and providing finality to judicial decisions. The legal doctrine of res judicata promotes the judicial philosophy of keeping judgments the final word on a matter in order to promote stability and reliability of judgments. In other words, courts want parties to be able to rely on its decisions.

However, the doctrine of res judicata is limited for child custody actions in light of considering the best interests of the child. The facts of each child custody case vary greatly and therefore courts are more open to modifying a child custody order than in other types of cases. On the other hand, courts also want to avoid children becoming pawns in their parent’s legal battles, so there is still a significant hurdle to overcome to convince a court to grant a motion to modify child custody.

There are several federal laws that limit the circumstances for a court to consider modifying child custody orders: the Uniform Marriage and Divorce Act, the Uniform Child Custody Jurisdiction Act, Uniform Child Custody Jurisdiction and Enforcement Act, and the Parental Kidnapping Prevention Act of 1980. These laws discourage parents from petitioning a court that modifies child custody orders more liberally than the court that granted the original child custody order, also known as forum shopping. Thus, stability is an important factor in considering the best interests of the child.

Therefore, when considering whether to ask a court to modify a child custody order, or when a former spouse has already asked a court to modify a child custody order, it is important to hire an experienced attorney with knowledge and practice of child custody modifications.

Categories: Family Law