Can I Change a Child Custody Agreement?

Depending on the age of your child when you and your co-parent divorce or first make a child custody agreement, a child custody order could be in place for ten or fifteen years or more. That’s a long time in the life of a family with growing children. A custody order is based on the family’s circumstances at the time the order is created—but as all parents know, circumstances evolve over time.

In other words, a child custody agreement that suited your family well three, five, or ten years ago might not work as well today. Can you change a child custody agreement (sometimes called a parenting plan, parenting agreement, or something similar - may want to add to the terminology explanation in next paragraph?) when that happens? Yes, but it’s not always easy—and that can actually be a good thing. Read on to find out why.

What’s the Difference Between a Custody Agreement and a Custody Order?

Before we get into how you can change a child custody agreement, let’s clarify: we use both the terms “child custody agreement” and “child custody order” in this article. Both terms may refer to the same thing, but not always.

A custody agreement is when both parents agree on how and when they will each spend time with the child (physical custody) and make major decisions for the child (legal custody). A custody agreement is in the nature of a contract between the parents until it is approved by a court and incorporated into a court order. At that point, it benefits from added legal weight.

A custody order is a court order that dictates the physical and legal custody of a child. It may be the result of an agreement between the parents that they submitted to the court, or the decision of the court in response to one parent’s request to establish or change custody. A custody order may be part of another order, like a divorce decree, or a stand-alone order.

For purposes of this article, when we refer to “changing a custody agreement,” we mean an agreement that has been approved by the court, incorporated into an order, and has the traits of a final custody determination on the parents.

When Parents Agree on Changing Child Custody

The easiest way to change an existing child custody agreement, unsurprisingly, is for both parents to reach a new agreement. Don’t gloss over the word “both;” custody agreements are necessarily bilateral. If both parents are not on board, it is not an agreement; it is one party trying to impose their will on the other. That’s not to say you can’t get an existing agreement changed if your co-parent doesn’t agree, but you will have to jump through some hoops—more on that below.

Why would parents decide to make a new child custody agreement or change the old one? Maybe the custodial parent’s job has changed and their work schedule has become significantly more demanding, and both parents agree it makes more sense for the child to spend more time at the other parent’s home. Perhaps the child is about to enter high school and wants to go to a school that is much closer to the home of the parent with whom they do not currently live. Perhaps the schedule was established when the children were younger, and now they are teenagers, and the number or timing of transitions in the schedule no longer works.

Whatever the reason for the change, if both parents want to make a new child custody agreement and agree on its terms, the court will almost always approve it. Courts presume that fit parents will act in the best interest of their children, so the only time a court will not approve parents’ agreement to change custody is if doing so is clearly not in the best interest of the child.

If you and your co-parent agree that a change of custody may be needed, but are not sure how to nail down the details of a new child custody agreement, mediation may help you reach a mutually agreeable solution.

Of course, it is often the case that one parent wants to modify custody while the other does not, or parents cannot reach an agreement on how child custody should be modified. That is when the court must make the decision about whether, and how, to change an existing custody order.

How Courts Decide on Changing Child Custody

Courts in Maryland, Virginia, D.C., and most other jurisdictions understand the reality that life changes for families, and that custody agreements cannot be set in stone. At the same time, courts value stability and predictability for children, who feel more secure when they have certainty about where they will live and who will care for them.

Accordingly, there has to be a balance between the competing values of flexibility and stability. Here is how courts in these jurisdictions navigate the tension between the two. In essence, there is a two-step analysis:

• Step 1: Has there been a material change in circumstances since the last custody order took effect that affects the child’s best interest?
• Step 2: If there has been a material change of circumstances, is the proposed new custody arrangement in the best interest of the child?

This process ensures the flexibility that families need as their children grow and circumstances change, while protecting children from the chaos of constantly changing living arrangements.

If the answer to both questions in the analysis above is “yes,” then the court will enter a new order outlining the new child custody arrangement. That order will supersede any previous child custody order or agreement. If child custody is changed, it is likely that child support will also need to be adjusted to reflect the new custody arrangement.

Must the Child Agree When Parents Change a Child Custody Agreement?

The short answer is no; a child does not have to agree when parents decide to change their child custody agreement. However, if you are asking the court to change your agreement, the court may ask for your child’s input regarding custody, particularly if the change is contested and your child is mature enough to offer their thoughts.

Even if you are not required to get your child’s buy-in for a change of custody, you may want to discuss any proposed changes with them, especially if they are older. After all, the change will affect their life. It may not be possible to fully honor your child’s wishes, but they may feel better knowing that you are at least taking those wishes into account as you make a new custody agreement. And if you are ever going to need to present the custody order in an international context, it is important to have it address whether the child was heard, how, and if not, why not.

Work with an Experienced Maryland Family Law Attorney

If you are considering trying to change a child custody agreement, a family law attorney can help you understand your options and try to reach a resolution as amicably as possible. To learn more about child custody in Maryland, Virginia, or D.C., contact Strickler, Platnick & Hatfield to schedule a consultation.