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:

Pay child support:
Always stay current on child support payments, including indirect payments such as those for health care, daycare, etc. If possible, make all such payments through an intermediary to adequately document both the fact and time of payments (most states provide for wage assignments and/or payment through the court system). Remember, the burden of proving payment will be on you.

Be a good parent:
Always exercise all the time afforded to you in the decree. Do not “blow off” any weekends, summer weeks, holidays, etc. Participate as fully as your decree permits in all decisions affecting your kids’ health, education, and welfare. Initiate communications with teachers, doctors, and counselors.

agreeable and courteous: Always demonstrate a willingness to include your wife as a co-parent. Inform her of important incidents relating to your child’s health, education and welfare occurring while the child is in your care. Do not argue with your ex in front of the kids. Do not send threatening letters. Do not disparage your ex in front of the kids.

Look ahead:
Be mindful of the suitability and stability of your residence for primary custody. A good neighborhood and a good school system may prove influential if you seek a modification. Be mindful of the suitability of your employment for primary custody: commuting time, travel and work schedule are influential.

Be a peacemaker:
Try to control your new wife; new wives can be deal killers in modification actions. They tend to be notoriously confrontational with the mom and reckless in their remarks in the kids’ presence. Ironically, step-moms are often the moving force behind dad’s motion to modify.

Document all matters relating to your kids:
Be sure you are doing this at your attorney’s behest (so that it may be privileged and therefore non-discoverable by the other side in a subsequent action). Specifically, document every time you have additional time with your kids and when they are left in the care of others. Also, document communications with mom. Document all of your ex-wife’s misdeeds that you witness. This journalizing exercise should be brief; no more than 5-10 minutes a day. Remember, the judge probably won’t endure “War and Peace” from cover to cover.

Leave the kids out of it:
Do not drill the kids about what is going on in mom’s house. Do not attempt to win over the kids by criticizing their mom. If the kids volunteer information, that is OK, but do not solicit such alignment.


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.


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