One of the only predictable things about life is that we can count on it to change. This is true for everyone, and it is especially true for families with children. As children grow, their needs change. A schedule and a visitation plan that may have worked well when children were toddlers may not work so well when they are preteens. This is not to mention the fact that the lives of parents change too. One parent might begin a new relationship, or take a job that requires a relocation. Whatever the situation may be, it is sometimes necessary for families to seek a modification of the court’s original custody order.
As with every other divorce issue, it is of course always best if the parties can discuss the issue themselves and decide upon a modification that may be best. If the parties are able to do so, they can file a motion to modify the custody order with the court, and along with that motion, they submit their proposed modification to the judge for approval. This is often referred to as a consent order, and is typically the best approach to reduce time, expense, and stress for everyone involved.
If, on the other hand, the parents are not able to agree on what sort of modification might be necessary, the parent desiring the modification will need to file a motion to modify custody with the court and prove either a violation of the original order as we discussed in the preceding section on enforcement, or prove what is known under the law as a “substantial and material change in circumstances.” If the court has determined that a substantial material change in circumstances has occurred, it will then consider whether modification of the existing custody order is in the best interest of the children involved.
Understandably, courts have some amount of discretion in determining what is considered a “substantial and material” change in circumstances. Often, if one parent is relocating to another state and the move might impact the child’s stability and emotional well-being, the court might consider that circumstance substantial enough to warrant a modification. Likewise, a significant lifestyle change for one of the parents might also necessitate a change. If for example, one parent suddenly begins struggling with addiction or mental health issues that are having a detrimental effect upon the child, this may qualify for modification. In other instances, if one parent has entered into a new relationship with a person who has proven to be a negative influence on the child or otherwise displays behaviors that are detrimental to the child’s well-being, this may qualify for modification of custody as well. If one parent starts suddenly leaving the child alone for long periods of time or failing to nurture and care for the child as he or she should, this may also warrant modification.
Generally, courts have a good deal of discretion and consulting with an attorney as to your particular circumstances is always a wise decision when determining whether or not a request for modification might be successful.
If you need to speak with an experienced custody attorney in Huntersville about modifying your existing custody order, contact Adkins Law to arrange a consultation.
What if we Enter into a Custody Agreement and the Other Parent Doesn’t Follow it? How Do I go About Enforcing it?
For those parents who are successfully able to negotiate the terms of a parenting plan and agreement but want the agreement to be enforceable in the way that an official court custody determination would be, a consent order is also an excellent option to consider. A consent order is an order which is entered by the court, essentially formalizing an out-of-court agreement negotiated by the parties.
Typically, the process for obtaining a consent order might involve one spouse filing a “friendly” lawsuit for child custody against the other, essentially for the purpose of having both parties agreeing to come together and place the case before a judge for the sole purpose of submitting the agreement for the court’s review.
The parties then set forth the terms of their arrangement in a document that both parents sign, which will then be submitted to the court for review, approval, and signature. After the order has been signed, it officially becomes a “consent order”, and is for all intents and purposes the same in the eyes of the law as a court order entered after trial, without actually having to have the trial itself. This means that instead of having to file a contract action to enforce the agreement, one party would be able to return to court for direct enforcement of the consent order itself.
Each of these questions are important questions to ask, and ones about which the information we have provided is hopefully helpful. It must be said, however, that no information provided in any guide is a substitute for the advice of an attorney which is uniquely tailored to your personal circumstances. Before you enter into any legal agreement, you should always seek legal counsel. For peace of mind, and for ensuring that you have adequately covered all of your legal bases, doing so is well worth it.
Mindset and Method Working Together
Ultimately, regardless of the method of negotiation and resolution that you choose, the most important element to successfully crafting an agreement that works for your family is making the decision to go into the process with an open heart and an open mind. Be willing to communicate openly and to cooperate readily. It is the one single choice you can make that will have the most impact on whether your attempts to reach an agreement succeed or fail. Even more importantly, it is critical to reducing the overall stress level that your entire family feels, which is best for everyone. This may not always be easy, but it will always be worth it.
Without question, divorce is an emotionally turbulent process. Most likely, there have been some harsh words and hurt feelings. That’s normal. The chances are good that difficulty working together is part of what may have caused you to decide to get a divorce in the first place. The effort to put that aside and focus on what’s best for your children can be difficult at times, but you should keep trying. From a practical perspective, what does this mean? It means:
In the end, the truth is that in many cases mindset and attitude will play a significant role in ultimately determining whether you are able to successfully negotiate and enter into a custody agreement on your own without the need for court interference. In some cases, however, as we have stated, this simply isn’t possible. The gap between what you and your soon-to-be-ex spouse want may simply be too wide to bridge effectively for any number of reasons– and that’s okay. In those instances, taking the matter to court and allowing a judge to decide those issues is typically the best path forward. Don’t be afraid to take it if you need to.
If you need to speak with an experienced child custody lawyer in Huntersville NC, contact Adkins Law to arrange a consultation.