How to Modify a Child Custody Order Without a Lawyer
By Teo Spengler
Updated October 15, 2018
The word "divorce" doesn't just represent one tough issue, it's a big, unruly cluster of challenging problems that will shake up every part of your world. Emotional peaks and valleys? Check. Housing dilemma? Check. Sorrow, anger and regret over the split and how it will impact your kids? Check. Then there is the "m-word" that shadows every single part of the process: money. One way you can keep your divorce costs down is to take over more responsibility for the court process yourself, saving on those whopper attorney fees, and this may be even easier in post-divorce motions than during the heat of the divorce battle. For example, you can modify your child custody arrangements in most states without involving an attorney. But should you?
What Does Child Custody Entail?
It's an accepted fact that breaking up is hard to do. But which part is the hardest? Ask any divorce lawyer about which issues in the split-up are the most difficult and the most emotional, and child custody is usually the answer. The couple is already losing each other; the idea of losing regular contact with their kids feels too nightmarish to bear. But a divorcing couple will have two separate abodes, and children can be in only one place at a time.
Let's note at the outset that, although most people talk about child custody in terms of where a child is going to live, the term actually has more than one aspect. There is physical custody, and there is legal custody. Physical custody means with whom the children will be living on which days, which weeks and which weekends. In some states, a couple can get joint physical custody, allowing the child or children to spend considerable time with each parent on a regular basis. One example would be alternating homes each week, but courts or couples can fashion any schedule that works with the parents' jobs and lives. Of course, this type of split custody works best if the divorced parents live fairly close to each other, since otherwise it would be difficult for the children to attend school and participate in sports and leisure activities on a consistent basis. Custody is often referred to as "parenting time" these days, although the old terms "custody" and "visitation" haven't disappeared.
If the court custody order assigns most of the parenting time to one parent so that the child lives primarily with one parent, that parent is called the "custodial parent" and is said to have sole custody. It is also termed primary physical custody. The other parent, in that situation, has the right to visitation (or parenting time) on a schedule assigned by the court.
Legal custody is another animal altogether. Parenting involves more than just providing bed and board. It also involves making life decisions for the child, who, as a minor, is not considered capable of making them herself. Who gets to decide where the child goes to school, whether she will attend church, or her medical providers? The parent with legal custody makes those decisions. Many courts regularly award joint legal custody, allowing both parents to participate in the decision-making process. If the court in your case awards joint legal custody and one parent doesn't allow the other to have a say, the court can and will enforce the custody order.
But joint legal custody isn't for every couple. If the two parents are not able to communicate rationally, or one has substance abuse problems or similar issues, it may be impossible to share joint legal custody. In that case, you need to provide the court with evidence of the problem and seek sole legal custody. To win, you have to convince a family court judge that joint legal custody is not in the best interests of your child.
Why You Might Want to Hire a Lawyer
Custody often becomes a fiery battleground for divorcing couples. Each seeks to protect the children, but it is also quite easy for a parent to fall into the bad habit of using a custody battle to punish the other parent for seeking a divorce, being unfaithful or committing similar offenses. Since most states permit no-fault divorce, and some, like California, no longer allow fault divorces, an angry spouse may express these resentments in custody matters. This is extremely unfortunate and short-sighted, since it can have a lasting detrimental impact on the children.
Of course, judges try in many ways to prevent a knock-down, drag out fight that is sure to damage the family unit, the kids' emotional grounding and the relationship between the kids and one or both spouses. But it's not always possible. Some states, like California, mandate mediation between the parents before a neutral party when custody issues are in dispute. Others limit the kinds of charges that can be made in custody papers against a spouse. But courts are busy, and emotions in a divorce run high. It is often left to the parties and their attorneys to be sure that a custody battle focuses on the best interest of the kids and unfolds in a relatively unemotional manner.
That's one reason you might consider hiring a lawyer, if custody is in dispute in your divorce. You may be shy and easily intimidated, or just hate emotional battles like most of us do. But a divorce lawyer is trained in these things and can nip any untoward attack in the bud by bringing an immediate motion asking the court to curtail certain charges or topics.
But, in addition, a lawyer may know far better than you do the optimal way to frame custody arguments. The court is obligated to make a custody decision with the best interests of the kids in mind. An experienced attorney knows the type of facts that are important and how to present them. Hiring a good attorney to represent you in a custody battle might be money well spent. If the other parent is a real and present danger to your kids (someone with a history of sexual or physical abuse, a person with serious mental health issues, an alcoholic, addict or a criminal) or a bully or narcissistic, do yourself a favor and get a lawyer.
How to File for Child Custody Without an Attorney
If you decide to do it alone, the experts suggest that you use mediation to try to work out an agreement with the other parent. Remember that a good compromise is one that makes both parties unhappy, so don't view the matter in black-and-white. Ask at the court about alternative dispute resolution programs offered or suggested by the court. Try to work out a parenting plan that will serve the kids well and allow them to see each parent.
If you can come to an agreement, have the mediator or an attorney put it into writing. Each jurisdiction may have different requirements for filing a custody agreement, so you'll need someone who knows local laws and procedures. Courts usually accept and approve a couple's agreement as to parenting time and legal custody.
If you can't agree, you'll have to be ready to battle it out before the court all by yourself. See if your court has a self-help website for family court and make use of it, reading up on how to seek custody, the type of evidence to present and how it should be presented. Sometimes the court has a facilitator who can assist you with the basic motion procedures. Many courts have a child custody evaluation procedure you can request, in which neutral professionals talk to all concerned and make a recommendation to the court. Many family law dissolution forms include a section where you make an initial custody request, so be sure you ask for what you want. Marshall your evidence, package it as the court requires and show up at the custody hearing. The court's focus will be on what is best for the children, so make that the focus of your presentation, as well.
How Do You File a Custody Modification?
Courts have different rules and procedures for how a parent can ask for a custody modification after a judge makes the initial custody and visitation order. If you are acting without an attorney, you will need to familiarize yourself with the laws in your jurisdiction. One or both parents can ask for the change.
It just makes sense that a parenting plan may need to be changed over time. Children get older and as they do, their needs change. Parents move on with their lives as well, changing homes, jobs and getting new life partners. Any and all of these can trigger the need for a revamp of the child custody order. Experts suggest that divorced or separated parents renegotiate a parenting agreement every two or three years.
If you can agree on a modification with the other parent, you can draw up an agreement and file it with the court. Usually these are readily accepted. If not, you can file papers yourself asking for a modification. Again, court rules may require you and the other parent to meet with a mediator before you go to the court hearing. Generally, a parent asking for a custody modification must show that there has been a “change in circumstances” since the prior order. This change must be significant enough to require a new custody and visitation arrangement. If the other parent has violated the existing order, this can be sufficient cause for a modification in some states. You'll have to convince the court that the modification you are seeking is in the best interest of the children.
Generally, you'll need to fill out the appropriate court forms asking for a new order. Have the forms reviewed by the family court facilitator, if there is one, or an attorney. You'll need to file the forms and also get a copy served on the other parent. This usually means some adult who is not a party to the action has to hand them to the other parent. The court will schedule a hearing, but it also may require an orientation, mediation or some other informal attempt to resolve the matter before the court appearance.
Can a Child Request Custody Change?
Since a child's best interests are the focus of custody orders, you may wonder if the child gets a say. The answer is: sometimes. Babies and very young children obviously won't get a vote, but in many cases, older children may be interviewed by a professional the court uses for custody evaluations. At that point, the kids may be able to offer important information about how safe or loved they feel with each parent.
Children may even express a preference for one parent or the other, but often kids don't want to make the decision.. They don't want to hurt either parent. In some states, children of a certain age (13 years in some states) are allowed to express their preferences to the court, but this doesn't mean they will be followed. For example, 16-year-old minors may prefer living with the parent who allows them to stay out all night, but the court may not find this in their best interest.
- Plan carefully before moving ahead with your petition to modify. Consider making a complete parenting plan in advance of the hearing so that the judge sees the seriousness of your efforts and your consideration for the needs of the children's relationship with the other parent.
- Don't assume that the outcome is a foregone conclusion. The judge will evaluate what is believed to be best for the children from their perspective after listening to the parents make a case. Also, have a legitimate reason to request the modification. If you are angry with the other parent, the court will not react kindly to your efforts to punish the other parent using the court.
From Alaska to California, from France's Basque Country to Mexico's Pacific Coast, Teo Spengler has dug the soil, planted seeds and helped trees, flowers and veggies thrive. World traveler, professional writer and consummate gardener, Spengler earned a BA from U.C. Santa Cruz, a law degree from Berkeley's Boalt Hall, and an MA and MFA from San Francisco State. She currently divides her life between San Francisco and southwestern France.