Wondering what reasons a judge will change custody?
Maybe you’re trying to get more child custody.
Or you’re worried about losing child custody.
In this article, you’ll learn:
- what to do if the other parent is not following the parenting plan
- how relocation affects your child custody agreement
- how to prove a parent unfit
- how to get emergency custody
- how to file for a child custody modification
- how to win a child custody modification case
So, let’s dive right in.
Table of Contents
- Reasons a Judge Will Change Custody
- Reasons for Emergency Custody
- How to Win a Custody Modification Case
- Reasons to Lose Custody of a Child
Reasons a Judge Will Change Custody
- Danger to the Child
- Contempt of Court Order
- Parent’s Relocation
- Death of a Parent
- Parent’s Situation Has Changed
- Parent’s Emotional and Physical Stability
- Child Abuse or Neglect
1. Danger to the Child
One of the biggest reasons a judge will change custody is if the child is in danger.
One of the key considerations is whether there is domestic violence in the home.
Domestic violence does not have to be directed at the child to affect child custody agreements.
The judge may make child custody modifications if one parent has a history of domestic violence.
The courts are concerned that the parent with a violent past may harm the child.
This is true even if the parent has never harmed the child before.
A history of domestic violence poses a danger to the child.
For this reason, the judge may make modifications to child custody agreements.
2. Contempt of Court Order
You’re probable wondering, “What is a contempt of court order?”
A contempt of court order means that someone knowingly fails to obey a court order.
This situation can look like, but is not limited to:
- the other parent not returning the child on time every week
- they take the child on road trips without telling you
If this is the case, you can file for child custody modifications.
Before you file for child custody modifications, you’ll have to:
- provide notice to the other parent that they are violating the child custody agreement
- provide evidence that these violations affect the child’s welfare
What happens if there’s a custodial parent not following court orders?
Custodial Parent Not Following Court Order
It’s a serious matter when there’s a custodial parent not following court orders.
A parent can be held in contempt for not following the custody agreement.
This is a reason a judge will change custody.
And, worst-case scenario, a parent can end up in jail.
If the other parent is not following the custody agreement, talk to your child custody lawyer.
It’s important that you gather evidence proving contempt of parenting plans.
When you file a petition to modify the parent-child relationship, you will need proof.
(More on that below.)
Related: Grounds for Full Custody of Child
Father Not Following Parenting Plan
Fathers not following parenting plans causes stress for the parents and children.
A father not following the parenting plan is one of the reasons to lose custody of a child.
The mother will be able to file a motion to modify child custody.
In extreme cases, the father can face jail time.
But the most common outcome of fathers not following parenting plans is child custody modifications.
Punishment for Contempt of Court in Family Court
Wondering what is the punishment for contempt of court in family court?
Contempt of court orders can result in:
- compensatory visitation
- child custody modifications
- jail time
If there is contempt of court in family court, the courts will let them amend the violation.
Most of the time, allowing the other parent to make up missed visitation is enough.
If there are repeated offenses, a judge will change custody or order jail time.
Withholding a Child From Another Parent
Withholding a child from another parent is a strategy some parents use for leverage.
They will withhold a child from another parent to get child support or out of spite.
Records of missed visitation should be kept as evidence.
When one parent is withholding a child from another parent, they should request make-up time with the child.
If the parent refuses to reschedule missed visitation, it’s time to hire a family law attorney.
But what should you do if the mother won’t let the father see the child?
Mother Won’t let Father See Child
If the mother won’t let the father see the child, you should call the police.
But remember, the police will not enforce child custody.
What you’re going to do is provide the police with the child custody agreement.
This proves to them that you have visitation rights.
They are going to fill out a report, giving you a legal record of visitation interference.
But if the mother won’t let the father see the child, the cops cannot get further involved.
It’s a civil matter that they cannot interfere with.
But sometimes they will show up to prevent domestic violence.
You will provide your family law attorney with a copy of the police report.
Proving Contempt of Parenting Plan
When proving contempt of a parenting plan, there are four things you need to prove.
- that there is a valid, written court order signed by the judge
- the other person knew about the court order
- the other person had the ability to follow the court order
- the other person intentionally failed to comply
It probably seems dumb that you have to show the courts that THEY issued a court order.
But they will still want you to show them the court order signed by the judge.
It’s also pretty obvious that the other parent knew about the custody order.
You will still have to provide proof showing that they knew about this.
It can be signed custody agreements, emails, texts, etc.
When it comes to their ability to follow court orders, it gets tricky.
Let’s say their car broke down and they were out of state.
How will you prove that this did or did not happen?
Make sure you can prove that they had the ability to follow through with the custody agreement.
Especially when proving contempt of parenting plans.
3. Parent’s Relocation
One parent considering relocating “a good distance” is a reason a judge will change custody.
Before they make modification of custody, they will take into consideration:
- why the parent is relocating
- if moving makes the visitation schedule impossible or impractical
- have the parents agreed on a new visitation schedule
- if the child’s life will be interrupted by a custody modification
If one of you are moving, let’s talk about how to change jurisdiction for child custody.
How To Change Jurisdiction for Child Custody
When you are relocating, you may want to change the jurisdiction for child custody.
Imagine that you filed for divorce in Georgia and everything was settled in Georgia.
Then, one year later, you got a new job in Seattle.
If the Georgia family courts have jurisdiction, then you have to come to Georgia for any child custody issues.
In this case, you may want to figure out how to change jurisdiction for child custody to Seattle.
This way, if there are any child custody disputes, you can go to your local courts in Seattle.
If you have a custody order and you move to another state, you have to return to the original state for child custody modifications.
So, let’s talk about how to change jurisdiction for child custody.
The first thing you need to know is the Uniform Child Custody Jurisdiction and Enforcement Act.
Uniform Child Custody Jurisdiction and Enforcement Act
The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has two main components:
- the child’s ‘home state’ has jurisdiction
- courts in other states must enforce the child custody agreement that’s in place
This is basically saying that no matter where you move, the child custody orders are in full effect.
This is why, if you move, you need to figure out how to change jurisdiction for child custody.
To change jurisdiction for child custody, you’ll need to file a petition for child custody modification.
This modification of custody will ask for the courts to change jurisdiction.
Related: Cost of Divorce
Both Parents and Child Have Moved Out of State
If both parents and the child have moved out of state, then the child’s home state assumes child custody jurisdiction.
But you will still have to file a petition to change jurisdiction for child custody.
If One Parent and Child Has Moved
If only one parent has moved, along with the child, then it’s a little more complicated.
There has to be a significant reason to change jurisdiction for child custody.
The courts generally won’t grant a jurisdiction change for relocation alone.
The courts take into account which state the child has greater ties to.
For example, if you moved for a job relocation, but the extended family is in the original state.
In this case, the ties to the new state are low and a jurisdiction change will probably not be granted.
But if you moved for better specialized medical care for the child, then the ties are higher.
You will need to consult a family law attorney to help you change jurisdiction for child custody.
With all of this jurisdiction nonsense, you might be wondering…
Can I move out of state with my child without father’s permission?
Can I Move Out of State With My Child Without Father’s Permission?
You can move out of state with your child without the father’s permission if:
- you have never been married, and;
- there is no court-ordered child custody
In this case, you do not need court permission to move out of state without the father’s permission.
But the father can:
- have a paternity test done, and;
- file for child custody or visitation
If the child’s home state is still where the father lives, then that state has jurisdiction.
But if the child has met the residency requirements for a new home state, then the jurisdiction is in the new state.
Residency requirements are usually 6 months.
You should speak with your local family law attorney to figure this out.
Related: Uncontested Divorce
Can a Parent Take a Child Out of State With Joint Custody
Wondering can a parent take a child out of state with joint custody?
The short, easy answer is “it depends.”
Don’t you love lawyers?
It depends on what you’re taking them out of state for.
Moving out of state with joint custody is different than going on vacation.
Most of the time, the child custody agreement explains what you can and cannot do.
Or, they could give you instructions on HOW to travel.
Or how to provide proper notice of travel.
You should always document conversations that you have with your ex about traveling.
If they get a wild hair, they can claim that you are kidnapping the child.
You want to have proof that they know and agreed to, you taking the child out of state.
If There Is No Custody Order In Place Can I Take My Child
If there is no custody order in place, you can take the child.
If the parents were never married, then the mother has full legal and physical custody.
In this event, the father does not have the right to take the child until he gets awarded custody.
If there is no custody order in place, the parents share physical and legal custody.
Each parent has the right to take the child as if they were still married.
Moving Out of State With Child No Custody Agreement
Considering moving out of state with child no custody agreement?
You are legally allowed to move out of state if there is no custody agreement.
The only reason you would not be able to move out of state is if the child was born in a marriage.
Both parents have equal rights when the child is born during marriage.
This means that if the parents separate, but there is no custody order in place, you still cannot move out of state with the child.
Related: Dissolution vs Divorce
How Far Can a Parent Move With Joint Custody
When it comes to how far can a parent move with joint custody, 50 miles is the cutoff.
If one parent moves more than 50 miles away, they must come to an agreement with the other parent.
Both parents have to agree on:
- the relocation itself
- a child visitation schedule adjustment
If you want to get the court’s approval, then both parents need to agree on this.
For best results, create and agree on a new schedule for visitation and child custody.
If you and your ex can provide your agreed-upon adjustments, the courts will approve it.
If you and your ex cannot come to an agreement, you may have to get a family law attorney involved.
Let’s talk about the next reason a judge will change custody – death of a parent.
4. Death of a Parent
When a parent dies, this is obviously a reason a judge will change custody.
But who receives child custody when a parent dies?
Is it the other parent?
Do the grandparents have custody rights?
Here’s a list of people who can potentially get child custody after the death of a parent:
- non-custodial parent
- aunts, uncles, cousins
- family friends, god-parents, neighbors
- the state child care
Death of Custodial Parent
If a custodial parent dies, a child custody modification is necessary.
The courts have to decide whether:
- the non-custodial parent will assume full custody, or;
- a third party will assume custody of the child
The courts always make child custody decisions based on what’s in the best interest of the child.
They like to give the non-custodial parent full custody when it makes sense.
They believe this will cause the least amount of strain on the child’s life.
There are a few reasons why the courts would not let the non-custodial parent have full custody:
- they live too far away from the custodial home
- they live too far away from extended family
- the non-custodial parent’s work doesn’t enable them to have full custody (traveling work)
- the child would rather stay with a third party (grandparents)
The most common third party to receive full custody after the death of a parent is:
- aunts or uncles
Death of Both Parents
What happens to child custody if both parents die?
If the parents have appointed a guardian in their will, then that person will take custody of the child.
But if there are no guardians appointed, then the courts will make the decision.
Any relative can file a petition to get custody of the child.
The courts will take the following into consideration when determining third party child custody:
- The best interests of the child
- The child’s relationship with the third-party adult
- The wishes of the child and of the parents
- The child’s adjustment to school, home, community, and other factors
- The non-parents ability to provide for and support the child
5. Parent’s Situation Has Changed
Another reason a judge will change custody is if a parent’s situation has changed.
This can be a positive or negative change.
For example, let’s say that one parent lost child custody due to addiction to alcohol.
If they attend addiction courses and prove that they have cleaned up, they can file for child custody modification.
To request a modification to child custody, you will have to prove:
- the changes are substantial
- the changes positively affect the wellbeing of the child
But, on the flip side, negative changes are reasons a judge will change custody as well.
Reasons to modify child custody include if a parent happens to:
- become addicted to alcohol
- become addicted to drugs
- lose their job
- get evicted
- commit domestic violence
These are not the only child custody modification reasons.
They are just examples of reasons to lose custody of a child.
How to Prove a Parent Unfit
If you’re trying to figure out how to prove a parent is unfit, you want to make sure they are.
If you’re in the middle of the divorce process, don’t start making false accusations.
After reviewing the laws, start gathering evidence that the parent is unfit.
Examples of evidence of unfit parents include:
- video recordings
- text messages
- medical reports
Now that you have proof, let’s talk about how to get custody of a child from an unfit mother (or father).
How to Get Custody of a Child From an Unfit Mother
After you have compiled the evidence to prove an unfit parent, file the paperwork.
You’ll want to file a petition to modify the parent-child relationship.
When you file the motion to modify child custody, add your reasons to modify child custody.
After this, serve your ex with the papers.
After you have served the papers to the unfit parent, you can schedule a hearing.
In the hearing, you will present all the evidence proving the other parent is unfit.
If you need help figuring out how to prove a parent unfit, contact a child custody lawyer.
Unfit Mother Examples
Some unfit mother examples include, but are not limited to, the following:
- abandonment of the child
- desertion of the child
- failure to maintain a reasonable degree of interest, concern, or responsibility of the child’s welfare
- extreme cruelty to the child
- child abuse
6. Parent’s Emotional and Physical Stability
The family law courts take into account the parent’s emotional and physical stability.
They want to make sure the child is raised in a stable environment.
Children thrive when they know what to expect and have routine.
Judges know that a child’s emotional stability is heavily influenced by a parent’s.
So, they will make sure that the parent does not have major instabilities.
Related: Divorce as a Stay at Home Mom
For examples of physical instabilities, think:
- moving frequently
- consistent unemployment
- drug abuse
- alcohol abuse
- in and out of relationships or marriages
- not having a place to live
The judge is going to do what’s in the best interests of the child.
If there is major instability in a parent’s life, it’s one of the reasons a judge will change custody.
7. Child Abuse or Neglect
Child abuse does not have to be serious to be a reason a judge will change custody.
Any activity or behavior that threatens a child’s well-being is considered abuse.
- verbal abuse resulting in emotional trauma
- physical abuse resulting in bruises, scratches, or broken bones
But neglect is another form of child abuse.
Neglect is when a parent refuses, or fails to, provide for a child’s basic needs.
This includes not bathing, feeding, or providing medical care.
If you are trying to prove child abuse or neglect, you’ll need more than circumstantial evidence.
For modification of custody agreements, you’ll need witnesses or medical records.
Witnesses can include:
- family friends
- health care providers
Reasons for Emergency Custody
An emergency custody hearing discusses child custody issues that pose a risk to the child.
Emergency custody hearings get held almost immediately.
In emergency custody hearings, the judge makes decisions in the best interest of the child.
In general, a parent can seek emergency custody when the other parent poses a threat to the child.
Here are some reasons for emergency custody:
- neglect or abuse of the child
- extreme substance abuse of the parent
- sex offender living in the house
- child abandonment
The reasons for emergency custody must be true emergencies.
If the other parent is posing an immediate risk to the child, then it’s a reason for emergency custody.
It is not usually considered emergency custody if the other parent:
- has a better relationship with the child
- can’t attend to special needs as well as you
- is less financially stable
- has a less stable home environment
- has a less flexible work schedule
When it’s not a reason for emergency custody, you’ll have to file a normal modification for child custody.
This child custody modification hearing will take a few weeks to occur.
Let’s talk about how to file an emergency motion to modify child custody.
Emergency Motion to Modify Child Custody
Filing an emergency motion to modify child custody is pretty serious.
You usually file an emergency motion to modify child custody when there is an urgent issue putting the child at risk.
To file an emergency motion, have your family law attorney fill it out.
They will submit it to the family court that has jurisdiction over the child custody case.
After filing an emergency motion to modify child custody, you’ll have a hearing within 24 hours.
The other parent does not have to attend the hearing.
This emergency custody hearing is for you to explain the emergency circumstances to the judge.
After hearing you out, the judge will decide whether to issue an emergency custody order.
If they do issue an order, there will be another hearing in three weeks.
This hearing is when both parents show up.
They each are able to present their case to the judge.
The emergency hearing will get extended or terminated at this time.
Can You Change Custody Agreement Without Going to Court
You can change a custody agreement without going to court if both parents agree on it.
To change the custody agreement without going to court, file the modification of child custody as normal.
But in the modification, include the proposed agreement that you and your ex have.
In this case, you will have to show up to the court to change a child custody agreement.
There are potential negatives of changing a custody agreement without going to court.
- The child custody agreement is not enforceable.
- One parent can overstep their boundaries.
If you change a custody agreement without going to court, it’s not enforceable.
This is because the courts can only enforce an order issued by the judge.
If the other parent decides they don’t feel like honoring the new custody agreement, then they are able to.
If the custody agreement was not legally modified by the judge, then they are not enforceable.
The other parent can overstep their boundaries easily.
Without a court-ordered custody agreement, they can start asking for the kids on extra nights.
It’s easy to think, “I’ll just say no,” or “that won’t happen.”
But what if it does?
The custody agreement will not be enforceable.
Either parent can really do what they want.
Next, let’s talk about how to win a custody modification case.
How to Win a Custody Modification Case
What’s the basis for a child custody modification case?
There are two main reasons a judge will change custody.
- something major happens in one parent’s life
- a string of minor issues violating custody orders
Major reasons to modify child custody include:
- out of state relocation
- domestic violence
- criminal activity
- being arrested
- substance abuse
Minor reasons to modify child custody include:
- custodial parent not following court orders
- interference with parenting time
- withholding a child from another parent
- failure in school
- including the children in parental disputes
For these minor reasons, a single occurrence does not lead to child custody modifications.
Repeated, documented offenses are reasons a judge will change custody.
Whether the issues are minor or major, document as much as possible.
To win a custody modification case, you will need to provide evidence for a modification of custody.
Next, let’s talk about the reasons to lose custody of a child.
You’ll want to know these whether you are proving or defending child custody modifications.
Reasons to Lose Custody of a Child
We’ve discussed reasons a judge will change custody.
But what about the reasons to lose custody of a child completely?
Will changing custody result in loss of child custody?
It is possible.
Here are the main reasons to lose custody of a child.
- physical or sexual abuse
- false allegations
- child neglect
- domestic violence
- untreated mental illness
- violation of court orders
- substance abuse
- refusal to co-parent
- parental alienation
- unsafe housing
Again, no matter what the reason is, you need proof.
The best proof is video.
It provides a visual and audio of the other parent that’s hard to deny.
Related: Common Law Marriage
Other forms of proof include:
- audio recordings
- social media posts/messages
- text messages
- voice mails
No matter what proof you have for reasons to lose custody of a child, give them to your family law attorney.
Your family law attorney will know exactly what needs to be done to modify child custody.
Over to You
If you want to modify child custody, fill out the form below.
We provide free, 30 minute consultations with an attorney.
We will let you know if you have a valid reason a judge will change custody.
We will also let you know how to approach custody modification.