In a child custody case the most important question is, “Who will have custody of the child?” After naming the custodial parent, the other parent will necessarily be given visitation rights, of course, unless he is seen and proven unfit by the court.
Legal experts, like those at Arenson Law Group, PC, agree that it is very important that a child has a strong relationship with both of his/her parents. Thus, courts typically award custodial rights to that parent who would very likely be able to cultivate such relationship between the child and the other (non-custodial) parent. There are other relevant factors that courts consider when deciding on the matter of custody but, regardless of what these are, these should be in line with the most important factor which is the best interest of the child. The child indeed is the most important part in such cases.
There are times, however, when the chosen custodial parent (or sometimes the parent given visitation rights) is not able to live up to the court’s expectations, failing in his/her obligations to fully recognize and respect the other parent’s rights and personhood.
The specific details through which failures are committed are numerous and varied. Generally speaking, all these are considered as visitation and custody interference issues and all call for the same thing: a modification in the original decision pronounced by the court. These interference issues include:
- Frustration of the non-custodial parent’s visitation rights: these are instances wherein a custodial parent, for whatever reasons, eventually resorts to means that will alienate the child/children from the other parent. The most common of these means is denial of visitation rights
- Estrangement of the child’s affections from the non-custodial parent: a child’s relationship with his/ her non-custodial parent can be severed through false accusations and/or negative comments by the custodial parent against the other. Unknown to the custodial parent, however, is that this/her ill-talks about his/her former partner also negatively affect the child’s emotional and mental health
- Parental Alienation Syndrome (PAS): this occurs when the custodial parent consciously and systematically brainwashes the children, resulting to the children eventually disfavoring the other parent. Since most Family courts consider as vital the existence of a strong relationship between a child and his/her parents, these courts also believe that the ill behavior displayed by the custodial parent warrants a change in custody
- Change of Residence: despite the stipulation (in the divorce decree) of the need for the noncustodial parent to be informed of any plans by the custodial parent to move to another city or state, many custodial parents ignore this requirement and even relocate to a distant location secretly. This stipulation is inserted in the divorce decree to give the noncustodial parent the chance to argue against such plans. As this move can affect the child’s relationship with the other parent, many courts believe that it establishes a significant change in circumstances which justifies a change in custody
There are also other reasons why a change in custody may be warranted, such as:
- Material and Substantial Changes: these include the custodial parent’s remarriage, inability of the custodial parent to provide the required care due to a medical condition, commission of a criminal act, and criminal conviction.
- Child’s Preference: children aged 12 (or those who have reached the age of 12) are usually interviewed by the judge in his/her chamber or private office. A change in custody (as well as in visitation rights) may be made if the child asks for it, but on the condition that the court is convinced that such change will be in best interest of the child.
- Relinquishment of Custody: in some instances, a change in the court’s original decision on custody may be made by the custodial parent if he/she voluntarily gives up care and custody of the child. The change, however, will only be ruled as temporary if the reason of the custodial parent is due to military deployment or duty.
- Unfavorable Environment: if the environment where the custodial parent lives can endanger the child’s physical health or significantly harm the child’s emotional growth, then the other parent can request the court to alter its original decision.
It is important for (custodial and non-custodial) parents to file petitions with the court for a modification of its original decision regarding child custody and visitation issues as soon as his/her circumstances change or if he/she gathers information and proof that changes need to be made for the child’s best interest. These changes cannot simply be decided on and implemented by both parents, though, since the situation they are living has been ordered by the court; thus, any change to be made will need to be approved by the court, especially changes in custody and visitation rights.
Divorcing spouses should make sure that any request for modification of decision is made correctly and that this is supported by acceptable evidences, it is important that every legal move is done with the help of a knowledgeable and experienced family law attorney.