Before we can discuss how to change a child custody order, it is important to understand what a custody order is--and what it is not.
Child custody matters can be resolved by agreement of the parents rather than at a trial, but all custody agreements must still be reviewed, approved, and accepted by the court to be an enforceable court order as opposed to simply a contract between the parents.
Whenever a judge renders any decision regarding child custody, decision-making and/or parental access to the children, that decision becomes an official court order, which is referred to as a custody order. Accordingly, a child custody order is enforceable by the court, as well as potentially by law enforcement should the need ever arise. This custody order stays in place and remains enforceable unless, and until, the order is changed by the court.
Proposed or requested changes to a child custody order must be submitted to the court, and a new or modified order issued by the court for new changes to take effect. Most importantly, judges decide all child custody matters, including requests to modify custody orders, based upon what the court finds to be in the best interests of the children at the time of the request.
That means that, depending upon the ages and needs of the children involved, a custody order entered today could theoretically be in place for almost two decades. However, and as every parent can attest to, a lot changes occur in twenty years. A child custody order that serves the needs of a six-month-old child might not make as much sense when the child is six years old, or sixteen. Accordingly, it is by design that all custody orders are modifiable by the court so that the orders can continue to serve the best interest of the child.
At the same time, stability and consistency play important roles in children’s lives. It is already difficult enough for children to adjust to a new paradigm after a divorce or when their parents no longer occupy the same household. Thus, frequent changes to the custody arrangement (and the court battles that often accompany those changes) are often even more disruptive.
What all of this means is that when parents are looking to change an existing child custody order, the family courts must balance the competing values of flexibility and stability when rendering any future custody decisions. The court must be able to respond to children’s ever-changing needs and circumstances, while simultaneously helping to maintain the consistency that helps children feel secure.
If you are considering seeking a modification of a custody order in Maryland or the District of Columbia, you need to understand the process involved, what the court will consider, and how to present the evidence a court will need to rule in your favor.
Parents are always free to reach an agreement to modify child custody or visitation. So long as the court does not feel that the agreement is contrary to the child’s best interest, it will often approve such an agreement, also called a “consent order” or “stipulated order.” When the court signs off on a new custody agreement between the parents, that becomes the new order. These consensual agreements can be reached through the parents’ diligent efforts during negotiation or mediation. Unfortunately, parents are often unable to reach an agreement on their own because it takes two people to reach an agreement.
Accordingly, if you and your co-parent cannot reach agreement about whether and how to modify an existing child custody order in Maryland, one of you will need to file a motion to modify custody. A motion is a document filed with the court that requests a judge take some action in an existing case. The other party in the case will have the opportunity to file a response to the motion, and the court will set a date to hear the parties, or their attorneys argue the motion.
When faced with a motion to modify custody, Maryland courts presume that the existing custody order is in the best interests of the child unless proven otherwise. In other words, if two parents walked into the courtroom, stood before the judge, and said nothing, the parent opposing a modification of the custody order would win. For the parent seeking the modification to prevail, they must prove two things to the court:
Some things that could constitute a “material change in circumstances” include new drug or alcohol abuse on the part of a parent, a parent moving in with an abusive partner, or a parent seeking to relocate with the child to another state. Consistent denial of scheduled child access can also constitute a material change in circumstances. Significant changes in the child’s needs also can constitute a material change in circumstances. Obviously, factual situations are limitless and different. Competent legal advice on whether a change in a child’s needs constitutes a “material change in circumstances” often is warranted.
Whether or not there has been a material change in circumstances is a factual question. The answer falls largely within the judge’s discretion, but Maryland case law offers some guidance. For example, typical life changes, such as a child growing older, do not constitute a material change. The mere fact of a parent’s adultery is not, without more, a material change. A parent’s completion of a rehabilitation program for substance abuse, especially where there is evidence of past substance use, has been held not to be a material change. A material change must be something significant that directly affects the child’s life.
Remember, showing that there has been a material change in circumstances is only the “threshold” that you must cross for the court to consider modifying child custody. You must also be able to show that the new custody arrangement you are proposing will be in the best interest of the child. For instance, if you and the other parent currently live in the same school district, and the other parent is planning to move across the state, seeking to modify custody so that your child spends the school year with you, and has all school breaks and holidays with the other parent, might allow the child to stay in the same school and community with their friends, familiar care providers, and support system and could be seen as in their best interests. However, if the court doesn’t see your desired relocation as necessary, the court could decide to give primary physical custody to the parent not desiring to relocate.
The process for modifying child custody in the District of Columbia is very similar to that of Maryland. Reach agreement with your co-parent if possible, and if that is not possible, file a motion to modify custody in the Superior Court of the District of Columbia Family Court.
Like Maryland, D.C. requires a threshold showing of a “substantial and material change of circumstances” in a custody modification case. Once that threshold is met, a parent seeking to change custody must show that the proposed change is in the best interest of the child.
You may believe, or even know, that a custody modification is both warranted and in your child’s best interests. That said, it is not what you know, but what you can prove to the court that matters. You should have an experienced family law attorney help you present to the court the factual foundation it needs to decide in your favor.
An attorney who has handled hundreds of child custody determinations and modifications will understand which arguments are persuasive to a court and will present evidence that supports those arguments. If the attorney representing you has served as a best interest attorney in other cases, so much the better.
If you have questions about how to modify child custody in Maryland or the District of Columbia that were not answered by this article, we invite you to contact Strickler, Platnick & Hatfield to schedule a consultation.