Custody Modification After Divorce
What happens if, once the paperwork has been filed and the divorce is final, you are asked to move for a job? Or your work hours change, making it next to impossible for you to fulfill your custodial responsibilities? If you find yourself needing to make a change in the custody of your children, or needing the same from the other parent, consultation with a lawyer is key for the protection of all parties involved and for preventing either party from being found in contempt of court for violating your filed Permanent Parenting Plan.
Each state has different but similar sets of criteria for establishing the need for a change in child custody. At the front of every judge’s mind is what is in the best interest and welfare of the child(ren), and they will make their rulings centered around that focus.
Mississippi has no hard and fast rule for what constitutes a material change in circumstances significant enough to warrant a change in custody, but it takes into consideration what are called the “Albright factors” (from a 1983 Mississippi Supreme Court case, Albright v. Albright):
- Age of the child(ren),
- Sex of the child(ren),
- Health of the child(ren),
- Which parent had more continuity of care prior to the separation,
- Which parent has the best parenting skills,
- Which parent has the willingness and capacity to provide primary child care,
- Employment of the parent and the responsibilities of that employment,
- Physical & mental health of the parents, as well as age of the parents,
- Emotional ties of parent and child,
- Moral fitness of parents,
- Home, school, and community record of child,
- Child’s preference to select custodial parent if the child is 12 years old or older,
- Stability of home environment and employment of each parent, and
- Other factors of the parent-child relationship.
Tennessee has a somewhat more concrete definition of what set of circumstances gives you the possibility for a change in custody. Tennessee code states that showing a substantial risk of harm to the child does not qualify as a material change of circumstance. Instead, you can show material change by:
- Demonstrating failures to adhere to a Permanent Parenting Plan or custody and visitation order,
- By showing circumstances that make the Parenting Plan no longer in the child(ren)’s best interest,
- If significant changes in the needs of the child(ren) over time have developed,
- If significant changes in the parent’s living or working condition that significantly affect parenting have occurred, or
- If there are any other changes that making a change in custody or residential parenting time would be in the best interest of the child(ren).
Both states agree that the gender of the parent involved in the custody modification won’t create a “presumption of parental fitness” – in other words, the courts do not assume that just because you are the mother you will provide better care, or because you are the father you will provide worse care, or vice versa. Dozens of factors go into calculating a custody modification – make sure that you are aware of all of them before attempting to seek or effect a modification in court. A lawyer’s assistance can be instrumental in helping you achieve the results you are seeking.
