In family law cases, there are times when one parent seeks a modification
of the custodial arrangement. As with any family law issue, if the parties agree to the modification,
they can enter into a formal agreement which outlines the terms of the
modification and file the agreement with the Court for approval. Absent
an agreement however, custody modifications can be difficult cases for
the party requesting the modification. This is due to the fact that under
Indiana law, the party requesting the modification has the burden to prove
that (1) a substantial change in circumstances has occurred so as to warrant
the modification of custody and that (2) such modification is in the best
interest of the child(ren).
Keep in mind there are two forms of custody: physical and legal. A party may request to modify either physical custody, legal custody,
or both. When a party requests a modification of custody, the Court must
find that both elements of the applicable statute have been satisfied.
This can be a difficult burden for the requesting party to meet. For instance,
a change in the non-custodial parent’s circumstances is not a substantial
and continuing change so as to warrant a modification of custody. So a
change in the non-custodial parent’s circumstances – better
job, better home, more stable overall – will not in and of itself
be sufficient to modify custody.
The most common arguments that successful modifications rely upon involve
the safety and/or well-being of the child in question. The most extreme cases involve abuse of a child. Also, a showing that
the health of the child has been compromised can support a request to
modify custody. Less dramatic factors, such as a significant decline in
academic performance, can also be persuasive.
With respect to legal custody, a modification from joint legal custody to sole legal custody may be
appropriate if it is shown there has been a breakdown in communications
between the parents such that they can no longer communicate with one
another to make the child-related decisions. The breakdown in communication
can involve verbally or electronically abusive comments, or could simply
be a failure of one parent to participate in decision-making that negatively
impacts the child (e.g. missed sign-up deadlines).
Custody modifications are not readily granted as courts prefer to see custodial
arrangements with children to remain consistent. If you are considering requesting a custody modification, you would be
well advised to seek the assistance of counsel specializing in family law.
Hollingsworth & Zivitz, P.C., our team has the experience, the understanding, and the compassion to
assist with your family law needs. If you have questions or concerns regarding
divorce, mediation, collaborative law or any other family law concerns,
please contact our firm at
317.DIVORCE or visit our website at www.hzlegal.com.