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How Do I Get a Change in Custody?

Custody is always modifiable which means that it can always be changed after your divorce or initial custody order has been entered. However, what constitutes a change in the circumstances of the child or parent that justifies a change in custody is another question. First of all the party moving to change custody has the burden of proof. This means that the parent who wants to change custody must prove by a preponderance of the evidence that a change in custody is in the child's best interests. As a practical matter it typically takes an overwhelmingly strong case to convince a Missouri trial court to transfer physical or legal custody once it has been placed with the other parent. It is usually very expensive for both parents to go back to court because these issues can be highly contested. It is important to note that there is a big difference between changing custody and seeking more visitation or time with your child. The burden of proof to obtain more visitation or time with a child is much lower than a parent who is seeking to change the child's custody. A parent seeking additional visitation or time with a child must only show that it is in the child's best interests that he or she be given additional time with the child.

So what kinds of situations have resulted in a change of custody? What has not?

  • Religious beliefs – no.
  • Inability to take care of the child's hygienic and academic needs – yes, but you must prove that it is a direct result of the other parent's poor caretaking abilities and not because of some other problem such as the child having ADHD or some other diagnosed behavioral problem.
  • A joint custody situation that isn't working – yes, but again know that you have to prove your case in court to show why the joint custody situation isn't working.
  • A child's preference to live with one parent over the other – no. The rationale behind this one is that we're not going to reward "Disneyland Dads" who always have fun activities planned for the child and leave Mom who may have been the primary caretaker left out in the cold because she is the disciplinarian.
  • A parent's use of drugs and sexual promiscuity – yes.
  • Unfounded allegations of abuse of the child – yes.
  • Remarriage by a parent with nothing more – no.
  • Interference with visitation – most of the time no, because it is simply hard to prove.
  • Alienation of a child's affections – usually no, because there tends to be evidence of both parents engaging in this conduct with the child.
  • A parent who imposes their homosexual lifestyle on his or her child – yes, but there must be evidence that the parent imposed their lifestyle on the child which might yield a detrimental impact.

The bottom line is that there are lots of circumstances where a modification of custody might be pursued by a parent. The success rate on winning these changes in custody is low. The success rate is higher for the parent seeking more visitation or time with his/her child. If you are thinking about a change in custody or visitation consult with an experienced family law attorney and seek out as much information as you can.