The standard for modifying a custody judgment depends on the nature of the order sought to be modified. In general, a custody order will fall into one of two categories.
A “consent decree” is a stipulated custody order where the parties agree to a custody arrangement and no evidence of parental fitness is presented to the court. A parent seeking to modify a consent decree has the burden of proving: (1) a material change in circumstances since the entry of the consent decree, and (2) that modification of custody would be in the best interest of the child.
On the other hand, a “considered decree” is an award of permanent custody after the trial court receives evidence of parental fitness to exercise care, custody, and control of the child. To modify a considered decree, the moving party must first show that a change of circumstances materially affecting the welfare of the child has occurred since the prior custody order was rendered. Next, they must show that continuation of the present custody arrangement is so deleterious to the child as to justify a modification of the custody decree; or, by clear and convincing evidence, that the harm likely to be caused by a change of environment is substantially outweighed by its advantage to the child.
This is a heightened burden meant to curtail constant modification requests and promote finality in custody litigation. Be sure to discuss this with your custody lawyer prior to obtaining a considered decree, as it may have a significant impact on your ability to modify a custody judgment in the future. An experienced family law practitioner will be able to discern the specific factors relevant to your case and discuss how they may apply. At Southern Oaks Law Firm, we take the time to fully understand the facts of your case and work with you to obtain the best possible result under the law and in accordance with the best interest of your child or children.