Modification (Part 1)
For some dads, it is possible to predict at the beginning of a divorce that fighting in court will not result in a more favorable custody arrangement. The evidence may simply not exist to support a dad’s claim to primary custody or even a to joint custody schedule. If this is your case, your strategy should be to settle along the best lines possible in your circumstances and begin positioning yourself for the next engagement.
What if you have been divorced and your wife has primary custody of your kids? Or what if you became embroiled in an ugly custody dispute, you fought the good fight, but you lost? Is this the end of the story? In a word, No.
In most states, custody orders may be changed through modification. Technically a modification can be pursued at any time after the last court order. In order to obtain a modification, the party seeking the change (the “movant”) generally has the burden of showing a “substantial change of circumstances” from the time of the original order.
Although the specific language of the “change of circumstances” test varies from state to state, the purpose is always the same: after a divorce is concluded, the court system cannot permit one or both parties to subject the judicial system, the other party, and the kids to a repetition of the first trial when there have been no significant new developments. The standard makes sense. If the standard were less strict, at least one of the parties in most divorces would come back the next day for another “bite at the apple.”
Given these concerns, although you could theoretically have a “substantial change of circumstances” within 6 months of your divorce, courts view motions filed soon after a divorce with suspicion. In fact, in some states the burden is made greater if you file a motion to modify within one year of the divorce.
Subject to this significant limitation, however, virtually all custodial and financial issues are subject to modification. This is true because, whatever the circumstances of the children and the parties at the time of the divorce, things change. What constitutes a “substantial and continuing change” is a judgment call, but a major change in income of one or both parties almost definitely qualifies. A “change in circumstances” obviously occurs as the children mature and their expenses increase. Your ex-wife’s activities after the divorce may also produce a change in circumstances. For example, she may be indiscreet in her affairs, may have a wild lifestyle, and may continually depend on others to “watch the kids.”
If you decide to come back and file another day, you should have a calculated strategy to improve your relative position over time. If attaining primary custody is your goal, you should use all opportunities to create a record of exemplary parenting, fastidiously exercising all the custodial time afforded by your decree and volunteering to assist with the kids while your ex-wife is out partying. Moreover, since a “substantial change” may occur with respect to both your and your wife’s circumstances, you should try to improve your position and be on alert for a pattern of misdeeds on the part of your wife. Abiding by these rules might increase your chances winning primary custody or a better custody arrangement in the future:
This online custody guide is adapted with permission from “Civil War: A Dad’s Guide to Custody” (266 pages, softcover) – available in our online store.