In most jurisdictions, there are two major hurdles to clear when attempting to change custody: that (1) a material change in circumstances has occurred, and (2) it is now in the best interest of the child(ren) that custody be changed from one parent to the other. And while this particular article does not analyze this part in detail, in the event you are attempting to change custody away from a parent to a non-parent, you would have the additional burden of proving that the parent is unfit, as parents have a natural right to raise their children absent this additional burden – and that appears to be a very high hurdle to clear.
While you may consider these two standards fairly easy to prove, you must consider that someone who has never heard the issues in your case – the judge – may see it entirely differently. Plus, as the old adage goes, there are two sides to every story. You should be prepared for a defensive strategy as much as you prepare for an offensive strategy.
(1) Material Change in Circumstances:
In order for a court to even review the custodial arrangement, you must prove to the court that a material change in circumstances has occurred – the important word in this phrase being “material.” This will be considered different way by different judges, but if you are going to spend your time, effort, money, and energy in attempting to change custody, there should be a very significant change in life since the last time you were in court that requires court intervention – drug use in front of the children, a felony conviction by the other party, the children being placed in a very dangerous or unhealthy environment are all examples of a material change in circumstances. One caveat: you generally cannot “go behind” the previous court order or decree when making your arguments. The reason behind this is that those issues have already been litigated.
(2) Best Interest of the Child Standard:
Once you have established that a material change in circumstances has occurred, you must then prove to the court by a preponderance of the evidence that it is now in the best interest of the child(ren) that they be uprooted from their current home and placed in the home of the other parent. This is a challenging objective, and you should be prepared to strategically lace a mountain of evidence before the court in an organized manner to prove your case. You must constantly remember that you are asking a court to take the children out of one environment – often during the middle of a school semester – and place them in a different home and environment, so you better have great reasons for this extraordinary request.
As a child custody lawyer respects might attest, the presiding judge will have wide discretion in determining whether these two burdens are met. In many jurisdictions, a judge is not required to place in detail in his ruling why or how he or she arrived at the ultimate decision made. Therefore, it’s important to place each and every item that is relevant to these two standards before the court, as you cannot be sure which item of evidence may be the tipping point.
For these reasons, it is imperative to hire a veteran litigator and experienced family lawyer who has been involved in interstate family disputes for years.