Child custody battles during divorce often become heated and contentious. Afterward, tensions and ill feelings can continue to fester. It’s bad enough when this just exists between parents, but what about when it involves the kids? What if your child hates living with your ex? What can you do? Is there a way to modify an existing child custody arrangement?
What If They Don’t Get Along?
We all know that parents aren’t always the kids’ favorite. Mothers and fathers have the job of being disciplinarians and keeping them safe. It’s not always glamorous and fun. There are bound to be clashes in situations where the custodial parent enforces the rules while the other gets to be the “fun parent.”
Kids and parents not always getting along is about as normal as normal gets. We’re talking about more extreme situations. When all they do is fight, it’s not healthy, and possibly even detrimental to your child.
If your son or daughter truly hates living with your ex after the divorce, what can you do? Can you modify child custody arrangements? How?
Related Reading: My Ex Isn’t Making Child Support Payments
Best Interest Of Child – Child Custody Modification
When it comes to ruling on child custody cases, the court weighs many things. The overwhelming factor they consider, however, is the best interests of the child in question. In simple terms, that means exactly what it sounds like: where will the child be happiest and safest?
More than personal preference or parental convenience, the court looks at this when determining child custody.
In a strictly legal sense, mothers and fathers have an equal claim. It doesn’t always work out like this in practice, but that’s the way it is in a letter-of-the-law sense.
Related Reading: Legal Marijuana Use and Child Custody
Types of Child Custody
There are four types of child custody in California:
- Legal Custody: This gives parents the right to make decisions regarding a child’s life, including education, health, general care, where to live and go to school, and more.
- Physical Custody: This is when the court grants a parent the right to have the child live in his or her home.
- Sole Custody: This is when the court gives one parent both legal and physical custody.
- Joint Custody: This can refer to either legal or physical custody. It’s when separated parents both have a say in raising the child.
In most cases, parenting plans look like a combination of these types of child custody. It’s rare for the courts to award true sole custody. And joint custody works best when parents live in close proximity to one another, but not necessarily in other situations.
Related Reading: Physical Custody Vs. Legal Custody
How to Modify Child Custody
Once the courts make a custody and visitation order, it’s difficult to modify. That doesn’t mean it’s impossible, just that it often takes a great deal of time, effort, and potentially money.
The easiest, most convenient way to modify a child custody order is when both parents agree and are on the same page.
Over time needs, relationships, and situations change, and you may want a child custody modification to fit the new circumstances. If your child truly hates living with your ex, and your ex agrees or realizes it’s no longer in the child’s best interest, it’s possible to renegotiate the agreement in good faith.
When parents agree, modifying the custody order is relatively simple. You fill out and sign a few forms and the court reviews your submission. If everything is in order and beneficial for the children, a judge will sign off on the changes. This is, of course, a best-case scenario.
It’s when parents disagree that things get more complicated. If the parents can’t come to terms on their own, one must file a request with the court asking for a modification of the established child custody and visitation order. Once filed, it’s possible to work with a mediator to create a new arrangement. If not, you may have to go to court to state your case.
One important note: Even if you and your ex work out an arrangement on your own, it’s usually best to make it official with the court. It may seem easy and simple to just agree this is how it’s going to be. However, if things go sour in the future, which so often happens between exes, having things down in black and white makes things much easier.
Related Reading: How to Handle Child Custody Disputes
When and Why To Modify Child Custody Orders
As far as timing goes, you can seek to modify child custody orders at any time. However, the parent who seeks to alter the arrangement must provide justification. In most cases, this requires the petitioning parent to prove a significant change in circumstances since the original order went into effect.
The court views consistency and stability as key factors in a child’s life. As a result, you’ll also have to demonstrate how modifying the custody order represents the child’s best interests.
A “change in circumstances” means many things. One parent losing a job, facing a dramatic increase or decrease in income, or an altered work schedule are all common reasons.
Relocation may warrant a child custody modification. A parent remarrying or having children with a new spouse often represents a change in circumstances. If the custodial parent shows a pattern of irresponsibility, a judge may also account for that.
These examples, along with many others, often fit the bill. That said, just because there’s been a change, that doesn’t mean the courts will grant a modification. Change isn’t always a negative.
Related Reading: We Never Married, Do I Still Have Parental Rights?
Children’s Testimony
The courts don’t generally consider a child’s preference when it comes to child custody modification.
In certain situations, however, courts may take a child’s preference into account. If they’re old enough to articulate their reasons, it’s possible.
For instance:
If your child hates living with your ex to a degree where it becomes detrimental, the court may intervene. Again, we’re not talking about run-of-the-mill parent-child conflict. It must impact have an actual impact on their mental or physical health, safety, or overall well-being. It has to be more substantial than “mom makes me do my homework” or “dad lets me stay out as long as I want on weekends.”
The older the child is, the more likely it is that the court will consider their testimony. If they have legitimate reasons and state them clearly, a judge may take them into account. But again, it still has to truly be in their best interests.
A simple preference one way or the other probably won’t cut it. It must be more substantial and concrete than that they want to live with one parent over the other.
But when it comes to a child testifying in family court cases, there are also regulations. Rule 5.250 of the California Rules of Court, lays out the guidelines. There is no specific age, and whether or not to allow such testimony varies from case to case. It also depends on the individual judge.
Ultimately, it’s about striking a balance between valuing the child’s input and protecting their interests. If a child wants to testify, the court must balance their well-being with the benefits to the case. The rule establishes guidelines about how to protect the child, how the court receives the testimony, the responsibilities of court-appointed adults, and more.
Related Reading: Missteps That Hurt Your Custody Case
Comments 1
That’s good that if your child really doesn’t want to live with one parent that you could appeal it in court. I would think that would mean that you could get them in a better situation. If I ever get divorced, I’ll have to make sure that I do my best to get my kids to live where they wan to.