How can I change my current custody arrangement (current custody order)?
During a divorce or dissolution, there are many ways the custody of dependents can be decided. The parties can agree that one parent has sole legal custody of the parties’ children. This means that children will reside and be legally responsible to only one parent. Alternatively, the parties may agree to shared parenting, (joint legal custody). In this situation, the parents would coordinate a custody arrangement that is unique to their needs. Children would be able to reside with both parents, for varying lengths of time. Custody and legal decisions would be made by the parties jointly. Both of these custody arrangements are available to parties seeking a dissolution of marriage instead of a divorce.
Regardless of how custody was decided at the end of a marriage, circumstances can change after this initial custody determination. Some common examples are the parties’ remarrying, one party moving, a change in the schedule of either the children or the parents, or the needs of the children could change. These types of circumstances may lead you to need to modify your custody arrangement. So where do you turn when you have these scenarios in your home? The attorneys at Neyra Mize and associates can help guide you through your unique situation but read on for more background in what could happen.
If you are wanting the court to modify a previous custody arrangement there is a threshold requirement that must be presented to the court. This requirement is a showing of a “change of circumstances.” The change of circumstances must be in the residential parent (the parent who has custody) or either parent if the parties have shared parenting (joint custody). The change can also be with the children. One of these scenarios must be proven before you can make any arguments changing the custody arrangement between the parents. The purpose of requiring one party to demonstrate a change of circumstance is to prevent constant re-litigation of issues. The courts know divorce and dissolution can make people contentious so rules like this are put in place to prevent disgruntled parents from causing undue harm to the other parent or dependents.
While the statute does not strictly define “change of circumstance,” Ohio Courts have given litigants and attorneys some guidance. A trial court may not modify an allocation of parental rights and responsibilities unless the court finds: (1) that a change in circumstances has occurred since the last decree; (2) that modification is necessary to serve the best interest of the child; and (3) the harm likely to be caused by the modification is outweighed by the advantages of the modification. Further, the change in circumstances must be a change of substance, not a slight or inconsequential.1 Therefore, the modification must be based upon some fact that has arisen since the prior order or was unknown at the time of the prior order.2
Ohio courts have considered a variety of factors that are relevant to the “change in circumstances” requirement of R.C. § 3109.04(E)(1)(a).3 Relevant factors presented include a new marriage that creates hostility by the residential parent and spouse toward the nonresidential parent, frustrating attempts at visitation; the advancement of a child from infancy to adolescence; unruly behavior of the residential parent involving the police; and fights between the residential parent and a new spouse that requires police intervention along with the fact that the residential parent has moved multiple times in a short span of time. Id.
While examples like the above may seem extreme, smaller infractions or changes can constitute a need for a “change in circumstances”. A child crossing a developmental age in his or her life has been found to be enough, along with the passage of time, to constitute a change in circumstances. Perz v. Perz, 85 Ohio App. 3d 374, 377 (1993). The Perz court recognized that the passage of time in a child’s life from infancy to early adolescence is sufficient to warrant determining whether a change is in the best interests of the child. The Perz court noted an Ohio Supreme Court case, which held that there is an “adequate change of circumstances when a child reaches the age where, under the law in effect at the time, the child could choose the custodial parent.”4. The Perz court reasoned that, “[i]n applying the reasoning of Dailey to the statute, we conclude that a child’s attainment of ‘sufficient reasoning ability’ would be a substantial change in material circumstance such as would justify a further inquiry into the best interest of the child.”5
If you need to change your current order and want to have your case evaluated, please contact the Neyra Mize and Associates office. We look forward to working with you.
1.Fisher v. Hasenjager, 116 Ohio St. 3d 53 (2007), quoting Wyss v. Wyss, 3 Ohio App. 3d 412, 416 (1982).
- R.C. 3109.04(E)(1)(a).
- In re James, 113 Ohio St. 3d 420, 424 (2007).
- Dailey v. Dailey, 146 Ohio St. 93 (1945)
- Id. at 376 fn. 1, citing Dailey.