Modifying Child Custody Orders Post Divorce

Child custody issues are perhaps the most delicate decisions spouses will make during a divorce. In Georgia, the court’s primary consideration in drafting the custody order is the child’s best interest. The judge will take many factors into consideration, including each parent’s involvement in the child’s activities, legal residence, work schedules, personal relationships, mental and physical health as well as possible past criminal activity.

Once a child custody order, generally known as a parenting plan, is issued, both parents are legally obliged to follow it. That is not to say, however, that the order cannot be modified. The courts are well aware that children grow up, parents’ jobs change, relationships develop or end and people frequently move. Any of these circumstances could give rise to the need to modify an existing parenting plan.

Let’s look at the details of modifying a custody order after a divorce is final.

Why Change a Parenting Plan?

The main reason a parenting plan may need to be modified is that a family’s circumstances can and will evolve. As children grow up, their needs may change, or their schedules may change as they become involved in different activities or attend new schools. Perhaps a parent has new work responsibilities, and they’re required to travel more frequently, cutting into their designated time with the child. A parent could develop substance abuse issues that interfere with the child’s safety. A common occurrence is when one of the parents moves a considerable distance from the other, necessitating an adjustment to the parenting time schedule. Even a new primary relationship for either parent can impact the child – in positive ways or negative ones.

When circumstances affecting the child change, parents may petition the court for a modification to the parenting plan.

How to Modify Child Custody?

The first step is to contact your divorce attorney, who will outline the necessary steps to file the petition to modify custody.

Even where both parents agree on a specific modification to their existing parenting plan, it is best to file a petition requesting that the court issue a new parenting plan formalizing the agreed-upon change. Otherwise, the previously-issued parenting plan remains in effect and could be enforced by the court if one parent decides to abandon the new agreement and revert to the existing parenting plan. Likewise, the agreed-upon change may not be enforced by the court if it has not been adopted as part of a new parenting plan signed by the judge.

If the change is not agreed upon, then it will be up to the petitioning parent to prove that:

• A material change in circumstances affecting the child has occurred since the last parenting plan was issued; and
• Changing the custody framework is in the child’s best interest.

Documenting the reasons why a modification is needed and how the modification would benefit the child is key in preparing to present your case to the court. Communications between the parents can be an important piece of evidence for the judge to consider. Applications, such as Our Family Wizard, can be used to keep these communications organized and even to easily share them with your attorney or a guardian ad litem. The court may, and often will appoint a guardian ad litem as a representative for the child, and this representative is legally bound to act in the child’s best interest, investigate the co-parenting situation and make recommendations to the court. The guardian ad litem’s investigation will typically include interviews with the parents, the child and other important witnesses like teachers, doctors, counselors and other family members. The guardian ad litem will likely also review relevant evidence such as communications between the parents, school records and medical records, and may also make visits to the parents’ homes, sometimes unannounced.

Georgia has a few requirements parents should be aware of: Parents cannot file for a custody change within two years of a previous court-ordered change. This does not apply, however, to the period immediately after the original custody order. The petitioning parent(s) must be able to prove there has been a change in circumstances and that a modification to the custody order is in the child’s best interest.

Put the Child’s Needs First

Families grow and change, and children become young adults. What was best for the children five years ago may not be the same today. Parents should work together to periodically evaluate their children’s needs. Divorce is tough on the entire family. By alleviating some of the stresses of child custody, parents can provide a beneficial environment in which their children thrive. Plans can always be changed – do what’s in the best interest of your child, and the entire family will benefit.

Margaret Simpson is an associate at Boyd Collar Nolen Tuggle & Roddenbery. She focuses her practice on family law matters, with a particular interest in appellate cases.