If you wish to modify custody following the entry of your divorce decree, it’s important to understand that there is a very specific legal framework that will be invoked by the court.
The first thing the court is going to ask is whether there’s been a substantial change in circumstance since the entry of the divorce decree. If the answer is yes, then the court will explore whether it’s in the best interest of the child or children to have a modification occur.
The third, and I think most crucial element, involves either a showing that the child is endangered in the care of the other parent, or that the child has integrated into your home. The integration must be voluntary and must be with the consent of the other parent. Integration means the child is living with you or has been living with you for quite some time.
The fourth element that needs to be addressed involves a balance of whether the benefit to the child in changing custody outweighs any burden on the child in changing custody.
Now by far, the most front and center type issue involved in a motion to modify is whether there is endangerment, and endangerment is perhaps the highest hurdle to cross in family court. It literally means danger. It literally means that a child must be suffering physically or emotionally in the home of the other parent, and so that can be quite a challenge.
From a procedural standpoint, what we do is file the initial motion papers, and then if the court accepts as true the allegations raised in those papers, as they are instructed by statute to do, and they find that you have established the endangerment or the integration, along with demonstrating that all of the other elements are satisfied, the court will set the matter for a trial. And the trial will typically take place about three to four months following that initial motion hearing.
Most often during that interim period, the court will appoint someone called a guardian ad litem to meet with you, meet with the other parent, and meet with the child to really get at the crux of what’s going on, and to fully understand whether there is endangerment in the life of that child.