I Want to Change Custody

Many times parents want to change primary custody of the children as opposed to modifying visitation. Statutory and case law makes changing custody much more difficult than merely modifying visitation. Although not reduced to express statutory terms, a significant component of the “best interest” assessment is the policy goal of protecting a stable custody arrangement. As we have repeatedly emphasized, the

paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining ongoing custody arrangements.”

[Marriage of Burgess(1996) 13 C4th 25, 32–33, 51 CR2d 444, 449–450. When a successful custody arrangement (whether de jure or de facto) has continued over a significant period, the child’s need for continuity and stability assumes an “increasingly important role.” This factor will often dictate that the current arrangement be maintained because in the child’s best interest.

Where, in most relevant respects, a trial court finds both parents to be equally capable, using the “stability” factor as the “tie-breaker” (awarding physical custody to the parent who has most recently been the primary custodian) is well within its discretion. By the same token, considering all the relevant circumstances—including the child’s relationship and the relationship between the parents; with both parents, age, community ties, health and educational needs and, where appropriate the child’s preferences—the child’s best interests as a whole might require a change in the existing custody arrangement.

Noncustodial parent’s burden: Given the importance of stable custodial and emotional ties, in cases where custody has been lawfully acquired and maintained for a significant period (whether de jure or de facto), a noncustodial parent seeking custody bears the burden of persuading the trier of fact that a change in custody is in the child’s best interest. Because of the “stability factor’s” significance in the best interests weighing process, and to facilitate appellate review of a contested custody order, the Supreme Court has commented that trial courts “would do well to state on the record that they have considered this interest in stability … ” But the failure to do so is not error “and does not indicate that the court failed to properly discharge its duties.”

One must also consider the role of the “change of circumstances” standard as opposed to merely the “best interest of the child” standard. If the court has made orders after a trial on custody and visitation, the noncustodial parent must also prove that there is significant change in circumstances and that the change would be in the child’s best interest.