5 Reasons a Judge Will Change Custody

By Divorce.com staff
Updated Dec 26, 2022


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Your custody plan may have worked out perfectly when you first put it in place, but details can change with time. There are many reasons why your custody plan may not be sustainable in the long term.

Your children need a custody arrangement that works to support their well-being, and you may need to talk to a judge if your current plan isn’t working anymore.

It can often be difficult to get a judge to agree to change a custody plan without a clear reason.

Here’s what you need to know about reasons a judge will change custody and when you should speak to a judge about making that change.

What Is Custody

1. One Parent Won’t Abide By the Custody Arrangement

If a parent rarely shows up when they’re supposed to or if a parent takes the child for much longer than they’re supposed to, it can create unpredictability in a child’s life. This is especially true when a child is attending school.

They need to have a consistent routine throughout the week and be present at school every day.

If one parent consistently fails to abide by the custody arrangement, you can change the arrangement to create more structure and stability in your child’s life.

Parents who don’t show up or parents that take children for longer than the custody agreement specifies can be held accountable for not abiding by the agreement. This usually means that the more reliable parent will be granted sole custody of the child.

2. One Parent Becomes Incarcerated or Incapacitated

If one parent becomes incarcerated or medically incapacitated, they no longer have the ability to care for their child. The judge will change custody because it’s clear that one parent can no longer fulfill their role due to their incarceration or serious complications with their health.

It’s very easy to prove when one parent is in prison. If one parent is medically incapacitated, they likely understand that their situation would prohibit them from caring for their children and will be willing to submit medical documentation to the court. Changing custody under these circumstances is usually quick and simple.

3. One Parent Develops a Substance Use Issue

A parent’s substance use issues can have a negative impact on many areas of a child’s life. If a parent is struggling with an addiction to drugs or alcohol, they aren’t able to properly care for a child.

Drugs and alcohol lower inhibitions and impair cognition and coordination. You can’t safely transport, prepare a meal, or supervise a child when you’re under the influence.

Addictions can also have devastating financial effects on people. It’s difficult to provide for a child when a substantial portion of someone’s monthly budget goes towards their addiction.

Addiction and substance use can also cause parents to put children in unsafe situations. You don’t want your child in a bar or in a house where people are selling drugs or using substances. It isn’t a suitable environment for a child, and children need to be protected from those situations.

You cannot force your ex-spouse to get help, but you can prevent your child from being negatively impacted by their decisions. If you allege substance abuse in court, you need to be able to prove a history of substance use. If the parent has been arrested for something relating to alcohol or substance use, you can use their arrest as a starting point for changing custody.

This process can be difficult, and it won’t always lead to a successful change in custody. You’ll likely need the help of a lawyer to argue your case in front of a judge. The judge may allow that parent to resume custody if they complete a treatment program or meet other criteria that demonstrate it is safe for the parent to be around the child.

4. One Parent Is Negatively Impacting the Child

If one parent’s actions or behaviors could be considered neglectful, abusive, or detrimental to a child’s well-being, this may be grounds for a change in your custody agreement. However, it needs to be clear that the parent’s behavior is having a direct impact on the child.

You won’t be able to change custody if you don’t like your ex-spouse’s new significant other or if you find they don’t get along with your children. You also can’t change custody because you don’t support your ex-spouse’s political beliefs, religious views, sexual orientation, gender identity, or lifestyle.

The activities or behaviors your former partner is participating in must be harmful to your child in a direct and measurable way.

If your ex isn’t feeding your child a healthy, sufficient diet, that will negatively impact your child. If your ex verbally abuses, intimidates, or emotionally harms your child, this is considered dangerous behavior.

If your former spouse is physically abusive to your child, you need to intervene immediately and press criminal charges if necessary. If you get law enforcement involved, you may be able to have an emergency change to your custody order effective immediately.

5. One Parent Is Moving Far Away

It’s difficult and costly to navigate a 50/50 joint custody arrangement when one parent lives on the other side of the world. When you started your custody arrangement, you probably had no way of knowing that a career opportunity or a family emergency may transport one parent very far away.

You may need to change your custody agreement to reflect when that parent can be there for their child.

In situations like these, parents usually switch to primary custody, where the children stay with the parent who isn’t moving. The parent who does move can take children for summer vacation when it’s easier for them to spend quality time with the child without interrupting school.

There’s also a less conventional alternating-year custody schedule, where each parent has sole custody for one year at a time. This unorthodox arrangement is often helpful for divorced military families.

It allows children to spend meaningful amounts of time with parents who live very far apart. If that would work for your situation, it’s worth exploring the option.

When Can You Change Custody?

If you have a valid reason to change custody, you need to move at the right time. It can sometimes take a while to see the judge, so you need to move sooner rather than later if an imminent change or a pressing situation makes your custody change time-sensitive.

Whenever You Both Agree on a New Plan

If you and your ex completely agree to your new custody plan, it’s very easy to change your arrangement. You’ll create a new parenting plan and submit it to the court. If there are no objections from either of you and your reasons for changing your parenting plan are clear, you’re unlikely to encounter any resistance from the court.

When There Is Evidence of Danger

If your co-parent is placing your child in danger, you need to act immediately. Involve law enforcement in the situation and get a protective order. The moment you have a protective order, you can obtain emergency custody of your child. You don’t need to tell your spouse where you or your child are if knowing that information could put either of you in danger.

While the situation is ongoing, you can make plans for a permanent change to sole custody and begin the process while the emergency order is still in effect. If your spouse is charged with or convicted of a crime that indicates that they’re unsafe for your child to be around, you’ll be granted sole custody.

If your ex is allowed visitation, it will likely be on a limited schedule under the supervision of a court-appointed person in a neutral location.

When You Feel It’s the Right Time

If you’re the only parent that wants a change of custody, you’re going to have a very difficult time getting the changes you want. You’ll need the assistance of a lawyer to argue your case in court. If there is no clear evidence that your spouse shouldn’t have custody of your child, you have a difficult road ahead of you.

Judges won’t change custody without the consent of both parents unless there’s a legitimate reason to do so.

Taking the First Step

If your situation involves valid reasons a judge will change custody, you can fill out the paperwork with the help of your ex-spouse. When you both agree to the new plan, the process is usually easy.

If the situation isn’t as cut and dry, you’ll need an attorney who can help you explore your options.

The sooner you contact a lawyer, the sooner you can begin the process and move forward healthily with your children’s best interests in mind.

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