How a Lawyer Might Approach Modifying a Child Custody Order

While we have discussed child custody in general, today we will address what needs to proven to change a child custody order. If a previous child custody award has been made by consent decree, then the party seeking the change in custody must prove a material change affecting the wellbeing of the child. Additionally, the person seeking the change must be able to show that the change they are seeking is in the best interest of the child. Once a party who seeks a change meets this burden, the burden then shifts to the other party to put on counter evidence. But when a material change has occurred and the change sought is in the best interest of the child, then a court will most likely make that change. Whether you’re the one seeking a change or the one preventing one, it is best to work with a lawyer.
For example, Joe and Jill get divorced and enter into a child custody consent decree. Jill gets domiciliary custody. Soon thereafter, Jill remarries. Jill’s new husband is physically abusive to Jill and her children she had with Joe. As a result, Jill obtains a protective order against the new husband. Joe gets wind of this information and seeks to change the consent decree. He seeks to obtain domiciliary custody. He argues that there has been a material change of circumstance affecting the wellbeing of his child and that the change he seeks is in the best interest of the child.
But, Jill does not offer any evidence and simply rests. In this case, the court will vacate the consent decree and award domiciliary custody to Joe. Here, the child’s wellbeing was clearly at stake given that he was being abused. Therefore, this constitutes a material change of circumstances. Additionally, it is certainly not in the best interest of the child for him to reside with an abusive step-father against whom a protective order had been filed.
If you are at either end of a similar child custody dilemma, it is important for you to contact a lawyer. In this case, as in most child custody cases, the trial court will make a heavy fact driven inquiry. If the court finds Joe has met their burden, then the burden shifts to Jill to put on counter evidence.
Sometimes a party seeking to change a custody order is not right. Joe could not seek a modification of a child custody order for his own selfish purposes. If you believe your former spouse is attempting to do just that, call a lawyer and set up a consultation.
When taken up on appeal, an appellate court will not reverse a trial court’s child custody modification or lack thereof, absent manifest error or a clearly erroneous outcome. Therefore, it is ever so more important to get it right at the trial court level. We highly recommend saving all objective evidence including documentation that proves a material change of circumstances has occurred. Additionally, we also recommend that you provide us with material as to how the change you are seeking is in the best interest of the child. A family law lawyer is generally equipped to handle your child custody matter and seek any modifications to a current custody order.
Will Beaumont is a lawyer in Metairie & New Orleans.  This article is strictly informational and not legal advice.