The short answer to this question is "YES." However, one should keep in mind a range of factors.
Once a family law judge has issued a child custody order, the agreement is legally binding—meaning that unless a modification has been approved by the court, both parents must abide by the terms of that agreement. However, as you may have already realized, life can change dramatically after a divorce.
Sometimes, circumstances change so significantly that a modification is needed. You can change a custody agreement without going to court if you are able to come to an agreement with the other parent; but if not, then you will have to go to court so a judge can decide.
Potential Pitfalls of Handling Your Case Outside of Court
If you and your former spouse are co-parenting on amicable terms, you may be tempted to work out a new child custody arrangement without going through the courts. While this is an option – as long as you and the other parent can agree on a new solution – you should be aware of the potential pitfalls:
- First, you must realize that any arrangement made between you and the other parent would not be enforceable by the court: The can only enforce the original order. The other parent might wake up one day and decide they no longer want to honor the amended agreement – and, unfortunately, that would be well within their rights. If the terms of the child custody order were not legally modified by a judge, you wouldn’t have grounds to enforce the new agreement. Conversely, if you continued to operate under the new agreement without the consent of the other parent, they would have the full support of the court on their side.
- The new agreement might be mutually beneficial at first, but things can quickly take a turn for the worse if one parent starts to overstep their boundaries: They may start asking for favors here and there – “Can I have Tommy for an extra weekend?” – and at first you may comply, but without structure, the old saying “Give someone an inch and they’ll take a mile” might start to ring true.
How to Modify a Custody Order in Court
The only way to ensure that your rights are protected is to modify your custody agreement through the courts. In order to do so, you will need to file a petition citing that a significant change in circumstances has taken place.
An example of a “significant change in circumstances” can include:
- One parent wishes to relocate (“move away” case)
- The non-custodial parent moved closer to the other parent
- The child wants to spend more time with the non-custodial parent
- The custodial parent is being neglectful, abusive, or unreliable
- The non-custodial parent’s work schedule has changed
If you need help petitioning the court for a modification, contact a San Diego family law lawyer at Moore, Schulman & Moore, APC. Our firm has more than 200 years of collective experience, so we are well-qualified to handle your case.