My ex-wife has had custody of our children since the divorce. It’s been four years and I’d like to have physical custody for awhile. Under what circumstances can I obtain a child custody modification?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 14, 2021

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Courts generally oppose granting a child custody modification that would essentially bounce the children from one parent to another and back. Most judges seek an arrangement that will provide long-term stability for the child because this is deemed to be in the “best interest of the child,” the overriding standard in all child custody decisions.

This does not necessarily mean that you cannot get a child custody modification, but it does mean that in order to modify a prior custody order, you must show a “material change in circumstances,” in addition to demonstrating that the modification would be in the best interest of the child. What is considered a material change in circumstances will be determined by the family code in the state where the children live.

Proving a Material Change in Circumstances

Usually, to meet the “material change in circumstances” test and obtain a child custody modification, you must demonstrate that the current arrangement is detrimental to the welfare of the children. Additionally, the change in circumstance must have occurred since the entry of the last order by the court. Circumstances which may justify modification include:

– Reports of your ex-wife neglecting the children

– Your ex-wife refuses to protect your children from an abusive boyfriend

– Your ex-wife has developed a drug and/or alcohol problem

Of course, this is not an exhaustive list. In addition to situations producing harm, some states will allow a child to sign an affidavit after they have reached a certain age designating which parent they would like to live with. But it is important that the child make the decision freely and voluntarily: bribing or threatening your child can be considered fraud on the court, and lead to contempt sanctions against you. Once you have a validly signed affidavit from your child, you should file a request to modify your child custody arrangement and attach the affidavit.

If you are not quite sure whether your basis for child custody modification meets your state’s requirement for “best interest of the child,” or a “material change in circumstances,” consider speaking with a local child custody attorney for additional guidance on how to modify your child custody arrangement.

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