When can I file for a change in custody?
You have your custody order, but it’s been a few years and circumstances have changed. You want to modify the Order, so now what?
If you’re looking to modify a custody order, you are likely already very familiar with the terms “best interest of the children.” As you know, the primary focus of any custody case and determination is the best interests of the children. In Montgomery County v Sanders, the Court of Special Appeals attempted to narrow down and enunciate the factors a trial court should consider in determining the best interest of a child. The Court ruled that the criteria should include an evaluation of the “1) fitness of the parents, 2) character and reputation of the parties, 3) desire of the natural parents and agreements between the parties, 4) potentiality of maintaining natural family relations, 5) preference of the child, 6) material opportunities affecting the future life of the child, 7) age, health and sex of the child, 8) residences of parents and opportunity for visitation, 9) length of separation from the natural parents and 10) prior voluntary abandonment or surrender.” [Internal citations omitted].
In addition, a trial court may consider the “capacity of parents to communicate and to reach shared decisions affecting child's welfare, willingness of parents to share custody, fitness of parents, relationship established between child and each parent, preference of child, potential disruption of child's social and school life, geographic proximity of parental homes, demands of parental employment, age and number of children, sincerity of parents' request, financial status of parents, impact on state or federal assistance, and benefit to parents.” See Shenk v Shenk and Taylor v Taylor.
Because the Court is primarily concerned with the best interest of the children, which change and evolve over time, Courts in Maryland have the power to modify custody. Pursuant to the §8-103 of the Family Law Article, Maryland Courts are vested with the power to modify any agreement or settlement with respect to the “care, custody, education or support of any minor child . . . if the modification would be in the best interests of the child.”
However, a parent should keep in mind that it is the burden of the moving party to demonstrate the need for a change in custody. As explained in McMahon v. Piazze, “when presented with a request for a change of, rather than an original determination of, custody, courts employ a two-step analysis. First, the circuit court must assess whether there has been a ‘material’ change in circumstance.” As the Court of Appeals has explained, “a change in circumstances is ‘material’ only when it affects the welfare of the child.” McMahon at 594, citing McCready v. McCready, 232 Md. 476, 482, 593 A.2d 1128 (1991). See also Sullivan v Auslaender, 12 Md. App. 1, 5, 276, A.2d 698 (1971) (holding that to justify a change in custody, the change in conditions upon which it is based must be one affecting the welfare of the child and not of the parent) (citing Krebs v Krebs, 255 Md. 264, 257 A.2d 428 (1969). If the Court finds that there has been a material change in circumstances, then they consider the best interest of the child (as described above) “as if the proceeding were one for original custody.” See McMahon v. Piazze.
This is a tough burden to prove because normal, everyday change will not necessarily in and of itself warrant a modification. For example, claiming that the child was 4 years old when the Court determined custody and the child is now 7 is not typically sufficient (without more) to warrant a modification. The Court of Appeals has explained that the requirement of a showing of "material change" has its roots in principles of claim and issue preclusion:
The ‘material change’ standard ensures that principles of res judicata are not violated by requiring that such a showing must be made any time a party to a custody or visitation order wishes to make a contested change, even if it is to an arguably minor term. The requirement is intended to preserve stability for the child and to prevent relitigation of the same issues. See Domingues v. Johnson, 323 Md. 486, 498, 593 A.2d 1133, 1139 (1991).
Simply put, in determining whether a modification of custody is appropriate, the Court must recognize “the child's need for continuity. Basically, if a child is doing well in the custodial environment, the custody will not ordinarily be changed.” The best interests of the children are presumed to be “a continuation of custody.” Levitt v. Levitt, 79 Md. App. 394, 397, 556 A.2d 1162, cert denied, 316 Md. 549 (1989).
Many times parents have concerns regarding the other parent’s parenting skills, desires additional time with their child or even have concerns with their child’s behavior and academic performance, but is that enough to modify custody? The answer is “it depends.” For instance, in McMahon v. Piazze., the Court declined to modify custody where it found that the only changes were to be the minor child’s home life, age and maturity. However, changes such as a parent’s relocation, a child’s slip in grades or other identifiable harm, may rise to the level of a change in circumstances warranting a modification of custody.