How to Change Child Custody When the Other Parent Won’t Agree

If you need to know how to change child custody when the other parent won't agree, you've come to the right place. It's much easier to modify a child custody agreement when both parents agree, but it's possible to modify the order even if the other parent disagrees. In order to change custody, a parent must show that the change is in the best interest of the child. Even if the parent can show that, they also must provide a reason for the change. The reason shown usually must be some significant change in the child's situation (i.e. a move, loss of a job, new people in the child's life). A change in custody will require filing a motion and a hearing in court which both parties must be aware of.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 15, 2021

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  • Changing child custody is straightforward when the parents agree, but it is more difficult when one parent does not agree to the change.
  • The parent who wants the change will have to file a motion with the court that granted the divorce.
  • There will be a hearing that both parents must be notified of to determine whether the change is in the best interest of the child.

How do you change a child custody agreement when the other parent won’t agree?

When a child custody arrangement is in place, that agreement is legally binding and both parents must share the child according to the terms of that original child custody order.

If you decide you want to change child custody, you can’t make a unilateral decision to do so. This means if both parents do not agree on a modification, you’ll have to go to court and convince the court to change child custody.

Child custody is determined by what is in the best interest of the child, and courts are unlikely to see parental discord as in that interest. It isn’t impossible to change a custody agreement when one parent won’t agree, but it’s much harder than when both parents are on the same page.

If you are dealing with a change in custody agreement — whether you’re seeking it or trying to stop it — you will benefit from the assistance of a good family law attorney. You can search for an experienced family lawyer near you right now with our FREE search tool

Read on to find out what to do if the other parent does not follow the parenting plan.

Will the court change child custody?

If you are hoping to change child custody without both parents on board, you may have your work cut out for you. In fact, in many cases, it may not even be possible for you to make this change. There are several key factors that will determine whether you’ll be able to successfully change child custody or not, despite the other parent’s objections.

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How long is the waiting period after the original custody agreement?

The first key consideration is the length of time that has passed since the original custody agreement was put into place. Generally, it is considered to be better for the child to have as much consistency as possible. For this reason, among others, most courts will not make a change within a set time frame of the creation of the original custody agreement. This “waiting period” varies by state, but between one and two years is common. There are, of course, exceptions to the waiting period if it is believed the child is in imminent danger of harm if a change is not made quickly.

What is the reason for changing child custody?

The second consideration is why you want to change child custody. Whether you litigated the issue of custody originally or whether you agreed at the time, once the court signs off on the custody agreement they aren’t just going to change it because you ask them to change it, without some compelling reason to do so. After all, the original child custody agreement or child custody order is in place because either you the parents, or the court decided that the child custody agreement was in the best interests of the children. 

This means, generally, that the court will change child custody only if there is something different going on now. In legal terms, this is usually referred to as a “material change in circumstances.”

In most courts in the United States, before a court will even examine the evidence to determine whether the change is a good idea, the parent requesting the change will be required to show that there has been a material change in circumstances warranting that the court looks at the evidence to determine what is in the best interests of the children. If there is no change of circumstances, the court will most likely not even consider the evidence you wish to present. Examples of situations that might constitute such a “material change” could include a long-distance move, a change in living conditions, a change in environment, or a change in the ability of the parent to provide a home or care for the children.

For example, if one parent had been a gambling addict at the time of the original custody agreement and was granted limited visitation, he may be able to prove that he has now been clean for years and deserves another chance. On the other hand, if one parent was considered to be able to provide a better environment originally and she has since moved two violent ex-convicts into the home, this could also constitute a material change that would result in the child needing to be removed from her custody.

What is in the best interest of the child?

The third thing to consider is whether the change is in the best interest of the child. Ultimately, this factor is often the key deciding factor. The court made its original custody decision by weighing numerous factors to decide what was in the child’s best interests. The decision on modifying or not modifying custody will also be based on the court’s desire to do what is right for the children involved.

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How do you ask the court to change child custody?

If you believe you have grounds for a child custody change despite the other parent’s objections, you need to begin the process by filing the required paperwork. Usually, this is done by filing a “motion” with the family court in your area. 

You will most likely be required to make sure the other parent is “served,” or given a copy of the motion. Initially, evaluation by a social worker may be ordered or you may be required to attend a mediation where you and the other parent will be expected to make an effort to come to an agreement. Unless you come to an agreement, the mediator or social worker will file a report making a recommendation to the judge regarding whether and how the child custody order should be changed. A hearing will be scheduled where you both get to speak and present your evidence and arguments, and a judge then decides what is going to happen.

Some of the most common reasons a judge will change a custody order are:

  • Physical relocation – the noncustodial parent can contact the court to modify custody if the custodial parent moves. For the modification of custody, the judge will take into consideration if moving makes the visitation schedule impossible or impractical. Usually, the court will consider a move as a valid reason if the relocation would have a significant negative or positive effect on the child’s life. 
  • One parent does not follow the custody terms and court order – you’ll need to provide proper notice to the other parent and present evidence in court that demonstrates the violations are a substantial change of circumstances affecting the welfare of the child. 
  • The child’s needs have changed –  a child may need different environments at various stages in their life, so if you prove that to the judge, you may have grounds for a custody modification.
  • The child is in danger – if a parent behaves in a way that could put the child in danger, the court could modify the order and remove or substantially limit that parent’s rights to physical custody.

Behaviors or reasons that could justify a child custody modification include: physical health, emotional, or sexual abuse, psychological or verbal abuse, placing the child in circumstances, either through action or failure to act that put them in danger of abuse by others, drug, and alcohol abuse that puts the child at risk of harm or produces a negative influence, serious mental health concerns (psychotic breaks, hospitalizations, unstable or erratic behavior).

How can you get legal help? 

If you intend to try to modify a custody agreement through litigation, you will need a child custody lawyer to help you. Hiring a child custody lawyer to navigate through these issues is the best chance you have of being successful in petitioning the court for a change. 

To find an experienced family law attorney, enter your ZIP code into our free search tool . We can help you find the representation you need to deal with your case, child custody modification and other legal issues by helping you contact good family law attorneys near you.

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