Custody and visitation decisions during a divorce can be difficult. Once a custody agreement is in place, making changes to the child’s permanent residence can be even more challenging. However, the circumstances of either parent may change, as well as the child’s needs, and the decision may be necessary. Until a parent demonstrates otherwise, the court presumes that the final orders are correct, based on the information available to the judge at the time. To make a modification to a child custody order, the court has a two-pronged test.
In Wade v. Hirschman (No. SC04-1012), the Supreme Court of Florida established a clear test for all modification cases. The parent seeking the modification must show two things:
- The circumstances have significantly and materially altered since the original order.
- The change of custody is in the child’s best interests.
In Wade v. Hirschman, the original order was a split rotating custody case. Ten years after the order, both parents wanted to be the primary residential custodian of the child. The trial court found that the child’s mother refused to abide by the original plan and named the father as primary residential parent. The mother appealed the decision, up to the Florida Supreme Court.
A parent must only bring new circumstances before the court, rather than evidence a judge contemplated in the first custody order. For example, it could be a change to a parent’s mental health or the development of a substance addiction. The Florida Supreme Court iterated that “The posture of a modification proceeding is entirely different from that of an initial custody determination, and the party seeking to modify custody has a much heavier burden to show a proper ground for the change.”
It might seem obvious to a parent that changes to the custody orders are necessary, but meeting the legal definition can be challenging. There is a lot of case law which can apply to a given situation. If someone needs to make a child custody modification, an experienced divorce lawyer can help present the case to the court more effectively than the parent could alone.