Parents beginning the divorce process often wonder how the courts decide custody. After a divorce, you might wonder how to make changes to your custody order. The answer is that the standard to decide custody depends on where you’re at in the case. If you’re deciding custody for the first time, the court applies a different standard than if you’re trying to change a custody order that’s already in place:
Deciding custody for the first time
When the court decides custody for the first time, they look at the best interests of the child. The court starts from scratch to make the first order, and they have wide latitude to do what they think is best for the children. There’s no automatic preference for either parent based on gender. There’s also no automatic presumption that shared physical custody is best, either. In most cases, the court awards shared legal custody, but even legal custody isn’t guaranteed.
To decide custody for the first time, the court looks at a wide range of relevant factors. These factors include the child’s relationship with both parents and whether either parent has a history of domestic violence. The court decides what’s best for the child, and that becomes the custody order. It’s up to each parent to present the court with the evidence they want the court to consider.
After there’s a custody order in place
After the court puts the first custody order in place, it becomes harder to ask the court for a new custody order. To make a change once you already have an effective order, you must show the court that there’s a significant change in the circumstances surrounding the child. Things like growing older, remarriage of a parent or even minor difficulties in school or behavior typically aren’t enough for the court to revisit custody.
Does the amount of time since the last order make a difference?
The amount of time since the last custody order isn’t the determining factor. A substantial change can happen right after the ink is dry on the original custody order, or it might not occur for many years. The court considers only whether the change is significant enough to warrant reconsidering custody.
Positive and negative changes
A significant change can be positive or negative. For example, if a parent develops a substance abuse problem, the court might find that’s a substantial, negative change. On the other hand, if a parent presents proof that they’ve overcome a substance abuse concern, the court might see that as a substantial, positive change that warrants reconsidering the custody order.