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Modifications of Child Custody

As with modifying Child Support obligations, the court will consider the “best interests of the child” when “Modifying Child Custody.” The court will look to the following factors:

  • Mental and physical and well being of the parents and of the child.
  • The relationship between the child and the siblings and the child and the parent.
  • Any evidence of past child abuse.
  • Any evidence of past domestic violence in the household.
  • The preference of the child as to where to live.
  • The desire and ability of each parent to provide a frequent and loving home between the child and the other spouse.
  • The parent’s preference.
  • The child’s attachment to his home or his school.
  • Whether there were unfair methods of coercion or duress used to obtain the original custody agreement.
    A determination of which spouse is the primary caregiver.
  • Whether either spouse has had any conviction for drug/alcohol abuse, a sex crime, domestic violence, or a DUI.

If in the original “Decree of Dissolution,” the parents stipulated to “Joint Custody,” then they would have filed a written agreement called a “Joint Parenting Plan” which deals with the “best interests of the child.” This document would have been signed off by the original judge. In this plan, Custody issues such as where the child lives and visitation schedules for weekends, holidays, birthdays will have been included. When determining if the Joint Parenting Plan will work, the judge will have looked to the distances in which the parents live apart, work schedules, and other factors which would affect logistics. If there was no Joint Parenting Plan, then the judge most likely will have ordered Custody after a “Trial.” If there has been a change in circumstances, and one parent wishes to modify child custody, then these factors need to be argued by a skilled litigator to the judge. Lastly, courts can also allow visitations by grandparents if they have filed the proper paperwork. This is known as “Grandparent’s Visitation Rights”.
During a Child Custody Modification, the courts will want to hear testimony by an expert witness. At The Cantor Law Group, we often advise doing a “Custody Evaluation” or a “Dispute Assessment” which will include a “Request for Appointment of Mental Health Expert”. The mental health expert tests not only the parents, but also the child in order to determine the “child’s best interests.” After the Custody Evaluation Expert has interviewed the parents and children, they will also interview other witnesses who may assist them when preparing the recommendation to the judge regarding Child Custody. Many times, they also gather information from confidential sources or school and medical providers to use in their reports. The evaluator can be agreed upon by the parents, or the judge can order it over one or both parents’ objections. At The Cantor Law Group, we have relationships with numerous expert witnesses and specialists in the area of Child Evaluators.
If one of the spouses wishes to move out of state can take their children with them, then the remaining spouse who lives in Arizona will need to show that it is in the “best interests of the child” to remain in Arizona. The court will always look at the standard issues that they would look to in any “Child Custody” case, plus some very specific additional issues. The first thing the judge will ascertain is whether there is Joint Custody, or Sole Custody. The judge will also see whether the purpose of the move is to simply frustrate the visitation rights of the remaining spouse. Sole Custody moves are almost always granted, whereas Joint Custody cases are litigated extensively amongst the parties. Once this occurs, the entire issue of Child Custody is re-examined. The only way that the moving spouse can win is if they show a “substantial change in circumstances” which would justify a move with the children. Many times, this will include: obtaining a new job which pays substantially more than their existing job; being transferred for their job; living with a terminally ill parent; or anything of that nature. Simply asking to move for a “change of scenery” will not qualify as a “substantial change in circumstances”. Neither will dating a new significant other who wishes to move.
In Arizona, the term “Guardian Ad Litem” refers to a court appointed attorney who is representing the child. Judges will do this if the parents’ positions may be in conflict with the “child’s best interests”. This normally arises when a child insists on being with one parent over the other (i.e., usually teenagers). The purpose of the “Guardian ad Litem” is to prevent the parties from using the child as a “tug of war” rope. The “guardian ad litem” many times will agree with the majority of what the attorney wants, but may disagree with certain specific items. It is the job of the “guardian ad litem” to provide an open and honest assessment to the judge when determining the “best interests of the child.” This could be a position which is a compromise between the child, parents and the court’s general wishes.
As always, the “best interests of the child” should always take precedence. At The Cantor Law Group, we are familiar with all Post Judgment Enforcement and all Modification issues. We can help assure that all information which needs to be presented to the court on your behalf will occur. Contact us at the Cantor Law Group or call us today at (480) 858-0808 for your free initial consultation.

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