To parents, one of the most important aspects of the divorce process is custody of the children. While most people do not go to court for divorce in the United States, for those who do, the final court custody order is often the divorce’s most contentious and important part. This order can give you the finality and stability of knowing the final, judge-determined custody plan. However, sometimes circumstances change, and you or your Ex might be in a position where you need to alter the original agreement. This article explores why and how you might change a final court custody order or modify a parenting agreement.

What is a Court Custody Order?

A court custody order is the final, judge-determined parenting agreement following a divorce. A custody order indicates that this agreement is the official, binding legal order. If your divorce went through a litigious court battle, the judge’s final decision likely contains the child custody order. However, you do not need to go through a fully contested proceeding for a final custody order. 

Most parents reach a parenting plan or custody agreement outside the court process through mutual consent or mediation (like in an uncontested divorce).

If your divorce avoided the in-court process, your agreement must still be approved by a judge. The judge has the final say on matters of divorce and child custody and will issue the final custody order.

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To understand what keeps you out of court, read “What’s the Difference Between an Uncontested and Contested Divorce?”

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Why might you want to change a court custody order or parenting agreement?

The original child custody order is not set in stone. It can be changed as needed. As time passes and life moves, there might come a time when the terms of the original custody order need to be altered. You cannot always predict how your needs, your Ex’s, or your child’s needs might change over time, or the fact that new issues may evolve.

While there is not a comprehensive list, there are many reasons why a parent might renegotiate a custody order. One parent might move out of the state or country, making the original parenting order impossible or improbable. Another possible reason is that your child’s needs might have changed as time passed. If there is a substantial change in your child’s emotional, mental, or physical needs, perhaps one parent is better equipped to handle these changes. In a similar vein, if one parent’s situation has changed in either a positive or negative way, it might call for a different custody arrangement moving forward. Other, less collaborative reasons to change an agreement might be if one parent is not following the terms of the original agreement or the child is in danger.

Each state has its standard for when a custody order can be changed. However, the general sentiment is that if there has been a substantial change of circumstances that impacts the child and it is in your child’s best interest, then final custody orders can be changed. The second half of the standard, determining what is in your child’s best interest, does not have a concrete definition. The court generally determines the best interest by weighing factors, including the children’s needs, geographic location, parents’ desires, children’s stability, etc.

How do you change a custody order?

Depending on your relationship with your Ex, your specific state’s rules, and the scale of the change, you might have different avenues to modify the custody agreement. 

Court Order

The court process is the most common way to change a child custody order. This can be done whether both parents agree a change is needed or if you alone are seeking a custody change. In some states, like Michigan, regardless of whether the change is mutually agreeable, you must file a motion to change custody with the court. You will file the motion (paperwork asking the court to change the current custody order) with the court, your Ex will receive a copy of the request, and a hearing in front of the judge will be set. At the hearing, you or your lawyer will present evidence and point out why the current custody order should be changed. The judge will then determine if/how the custody order should change.

Many states will require a judge to sign off on any and all parenting time changes. This means that even if you and your Ex agree on a change and sign a written statement of the changes outside of the courtroom, you still must submit it to the judge to officially change the order. Submitting a change can be advantageous even if your state does not require a judge to sign the mutually agreed upon change. If an issue ever arises down the line regarding parenting time, it is important for a judge to be up to date on the status of your custody arrangement.

Mediation

Another possible way for co parents to change the final custody order is through post-judgment mediation. Post-judgment means it happens after the judge gives her final decision as to parenting time. Mediation might be a good option if you and your ex know you want to change the current order but might have differing views on how it should be changed. Additionally, some judges will refer co parents to mediation before the judge even hears the case in order to have the parties attempt to reach an agreement. If you come to an agreement through mediation, then a judge will likely agree with the modification. Mediation is often less expensive, time-consuming, and more collaborative than going through the court process again.

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Understand your options with mediation regarding all things divorce related.  Check out “Why Choose Alternative Dispute Resolution (ADR) if You are Divorcing.”

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Mutual Agreement

Some states allow mutual, written agreement as a basis for changing a custody order. This would be done through an understanding between you and your Ex. If this change is wanted and agreed upon by both parties, you can change the agreement outside of court. It’s great if you can work with the father* of your children when life circumstances have changed so that the original court-ordered agreement is no longer feasible. However, this option only works if both parents want to change the court order. 

In a state like New York, you and your ex can agree to change the custody order. However, you still must get it approved by the court. If both parties agree on the change and it is in the child’s best interests, then a New York court will usually allow a modification.

In a state like Florida, some courts might allow a lawyer to write up a new agreement for both parties to sign to modify the current parenting plan.

Different States Have Different Laws

As is true of all family and divorce law, each state has its own rules governing child custody.

It is crucial that you understand your home state’s rules because they will indicate any restrictions or steps you need to take to modify a court ordered custody order or custody agreement.

For example, most states have a mandatory waiting period before either parent can ask to modify the custody arrangement. This is to allow the child time to adjust to the new arrangement because change can be very difficult for children. In Illinois, after a judge gives a final custody order unless there is an emergency, there is a mandatory two-year waiting period before the order can be changed. In states like Indiana and Texas there is a one-year compulsory requirement. A state like Virginia only requires six months before the order can be modified.

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You might be operating from an outdated understanding of how divorce laws work. Read “Divorce Laws in the United States: Then and Now” to understand more.

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Another example of how states differ through the modification process is that some states, like Florida and Kentucky, might have you appeal the order to the same judge who ruled on the initial custody agreement.

Understanding your state laws will allow you to be better prepared for the custody changing process or any other modifications, like child support, that may be needed.

Conclusion

While a final judgment custody order (or court ordered custody order) is the final decision as to parenting time, you do have the option to ask the court for a modification. If you or your Ex has a substantial change in circumstances, there is a way to ensure your and your child’s needs are met. 

NOTES

Elizabeth Newland is a third-year law student in Chicago committed to children and family rights. She aims to work in a family-related non-profit firm after graduation. 

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*We support same-sex marriages. For the sake of simplicity in this article, however, we refer to your spouse as your “husband” or a “he.”