Child Custody Modifications

Once a judgment awarding sole legal custody to a parent is signed, whether the judgment comes about by agreement of the parties or following a trial, it is difficult for a party to modify the custody award.

In Oregon, the courts require that a party seeking a modification of legal custody to first make a showing that a substantial, unanticipated change in circumstances has occurred since the prior custody award. Only if a court finds that such a change has occurred will it then look to the "best interests of the child" standard in ordering a potential change in custody.

The Court Is Often Reluctant To Modify Legal Custody

Because family law judges understand how disruptive a modification of legal custody can be for a child, these kinds of modifications are often deemed to be contrary to a child's best interests. This does not mean that a court will not entertain a party's motion to modify custody; rather, it simply places a heightened burden on the party requesting the change.

Thus, whereas a court may grant a parenting time modification based upon a showing that the change will be good for the child, a change in legal custody will typically require much more.

When Custody Modifications Are Most Likely

Examples of when a court may order a modification of child custody:

  • If the custodial parent is no longer fit to act as custodial parent (e.g., evidence of domestic violence with a new domestic partner, issues with drugs or alcohol, abuse or neglect of a child)
  • If the custodial parent is failing to act as custodial parent (e.g., frequent school tardiness or absences, inability to work with educators, inability or failure to provide for children's basic medical needs)
  • If the custodial parent decides that he/she wishes to relocate. If a parent decides to move out of state, he or she must notify the court and the noncustodial parent prior to any relocation. Because Oregon state law places such a huge premium upon frequent and continuing contact with both parents, a court may determine that a custodial parent's determination to move may mandate certain parenting time — and, sometimes, even custody — modifications.
  • Though courts are extremely hesitant to place emphasis on a child's desires regarding custodial arrangements, many judges will consider (often through a child's attorney or a child's therapist) the wishes and desires of older children, especially when an older child is able to communicate valid reasons and concerns to the court.

There are, of course, several other circumstances that can result in a modification of custody. Again, in many cases, judges attempt to promote some finality with regard to child custody determinations. Nevertheless, because this sort of finality is not appropriate in all child custody cases, custody modifications can and do occur.

Finally, it should be noted that if a party requests a modification to an award of joint legal custody, the court is required to modify the award. Thus, a motion to modify an award of joint legal custody does not require a showing of a substantial, unanticipated change in circumstances.

Contact Us For Help

If you have questions regarding child custody modifications, schedule a consultation at Berman Law Center, P.C. Do not hesitate to contact our office by calling 503-715-2108, toll free 800-282-9288 or by completing our online contact form. We provide a free, 15-minute phone consultation, and, depending on the needs of our clients, we can offer off-hours meeting times.