I have a client that has a visitation order of a mere 5% due to a prior restraining order. He came to my office and wants to know what his options would be. Since the restraining order had expired, a modification is “necessary or proper” in the child’s best interests. Generally, a custody or visitation order may be modifiable during the child’s minority whenever the court finds a modification is “necessary or proper” and consistent with the child’s best interest.
I suggested reaching out to the opposing party’s attorney prior to filing any motion to see if a stipulation for more visitation time would be available. This not only curbs legal fees and court costs but is consistent with the duties required in family law of both parties’ to act in good faith.
The standard governing custody adjudications requires the court to review and conclude what is the child’s best interest. However, if the custody order has been deemed “final”—usually a Judgment has been filed, then a showing of “significant change of circumstances will be needed. The policy behind this is that modifications to custody or visitation create instability and security is essential to the child’s welfare.
The paramount goal is to preserve the need for continuity and stability in custody arrangements, unless some significant change in circumstance reflects a different arrangement would be in the child’s best interest. As for my client, there is no final custody order so the best interest standard is the applicable law.
Unless the order is permanent or final, the court is only required to make an initial custody determination of what custody order is consistent with insuring continuity and stability for the child. The burden of proof must be on the party requesting the change –my client.
We must show and persuade the court (1) that a new custody arrangement is in the child’s best interest. If however, your custody court order is final, an added burden is required (2) sufficient evidence of substantial changes in circumstances warranting a modification.
The court’s decision must be based on standards and policies governing all custody determinations—child’s best interest with primary focus on child’s safety, health, and welfare. The court must also weigh the preference for “frequent and continuing contact” with both parents.
Custody “battle” does not need to be a fight but unfortunately the children becomes ensued and commonly placed in the “middle.” Hence, my preference to resolve the issues “informally” by discussing the custody terms outside the courtroom first. It lowers legal fees and costs but more importantly the acrimony between the parents.
But if court intervention is needed, be prepared since modifying a custody and/or visitation arrangement, especially if final, requires a high burden of proof and persuasion. I have had many clients try to do it “alone” without an attorney and come in to my office frustrated and confused. Doing it right the first time with an effective attorney will prevent delay and costs.