One of the most difficult issues in a divorce is child custody. Deciding where the children are to live takes a toll on you and them. Oftentimes after a divorce is final, one or both of the parents want to change, or modify, the child custody order. Courts don’t want to disrupt a child’s life unless there’s a good reason. That’s why there is a two-step process for a judge to decide if a change in the Child Custody Order is warranted. Even if the parents agree to a new arrangement, it needs to be brought before a judge for approval.
Two Requirements for Child Custody Modifications in Massachusetts
To modify an order in the Family and Probate Court in Massachusetts, the judge must be convinced of two things:
- There has been a “material and substantial change” in the parties’ circumstances, and
- The modification you are seeking is in the child’s best interest.
What is a Material and Substantial Change in Circumstances in Massachusetts
Before a Family and Probate Court judge will even consider changing an existing order, they must be convinced that there has been a material and substantial change in circumstances. As the term implies, the change must be much more than a small change. It must be significant. The reason behind this is that a Court doesn’t want to keep changing Orders and disrupting the child’s life without good cause.
Child Custody Modification Reasons in Massachusetts
There is no set list a court uses to decide if there are sufficient grounds for a child custody modification. Instead, that decision is made on a case-by-case basis. Having said that, there are a number of common situations that a court has determined to qualify:
- One parent moves out of state;
- One parent constantly interferes with the parenting time of the other;
- The current plan interferes with the child’s activities;
- The home environment of one of the parents poses a danger to the child; and
- There is on-going substance abuse issues by one of the parents or one of the parents is now clean and sober.
What is in the Child’s Best Interest in Massachusetts?
What is in your child’s best interest is not always easy to decide. You have your opinion, your ex may have a very different interpretation. It’s up to the judge to make this critical ruling. When deciding what is in your child’s best interest, a judge will consider several factors including:
- The need to provide a stable home environment;
- Your child’s adjustment at school and in the community;
- Custody arrangements of other children;
- Relationships with other family members; and
- Your child’s wishes, if the child is mature enough to express them.
A Sample Case
There’s a case in Massachusetts where a divorcing husband and wife had twin girls. The judge ordered a shared custody situation where the girls would spend two-week intervals with each parent. That arrangement was changed to where the children would be split up. One would live with the mother one with the father. The appeals court ruled that a material and substantial change had taken place, the mother was now clean and sober. However, it ruled that separating the twins was not in their best interest. Therefore, that modification was not allowed.
Where to File Your Petition for Child Custody Modification in Massachusetts
You must know where to file for a child custody modification. You and your ex may not live in the same places as when the current order was issued. Here are some rules to decide where to file:
- If both parents live in the same county, the Petition should be filed in that county;
- If each parent lives in a different Massachusetts county, it needs to be filed where the original divorce was heard;
- If one parent lives outside of Massachusetts, the Petition must be filed in the child’s home state;
- That’s usually where the child lived for six months prior to the Petition being filed.
Filing Joint Petition to Modify Child Custody Order
Sometimes parents agree on changing a Child Custody Order. If that’s the case, you may file a Joint Petition to Modify. A judge still has to decide if it is in the best interest of the children. But a modification that is jointly requested by the parties will enter much more quickly than if it is contested.
Sometimes, you need to modify a Child Custody Order right away. These emergency situations can be heard immediately. In order to get an Emergency Order, you need to show that since the last Order, something has happened that puts your children in danger. The best interests of the child require that any such issues be heard as soon as possible.
Reasons for Emergency Custody in Massachusetts
Here are some common reasons for an Emergency Child Custody Order:
- Substance abuse that prevents a parent from properly caring for the child;
- Abuse of the child;
- Domestic abuse; and
- Exposing the child to a dangerous person.
How Much Does a Child Custody Modification Cost in Massachusetts?
Hiring a lawyer can be expensive. Most attorneys charge a lot of money. It’s impossible to say how much it will cost to modify a Child Custody Order in Massachusetts. There are too many variables, such as whether your ex is agreeable to the proposed change. Attorneys charge by the hour, but it’s hard to say how many hours will be required. At Afford Law, we use a sliding-scale when we set our fees. Our hourly rate is based on your income. The less you make, the less we charge.
How to Win a Child Custody Modification Case in Massachusetts
The best thing you can do to help win your child custody modification case is to show the judge that you’re a good parent. If you’re trying to increase your parenting time or change custody, the burden is on you to show the judge why that would be appropriate. The judge will want to know that you are someone who takes your parenting responsibilities seriously. You should:
- Show up for all your visits;
- Stay current on child support; and,
- Participate in your child’s life;
- Attend your child’s activities;
- Take your child to doctor’s appointments; and
- Participate in your child’s schooling.
Changing a Child Custody Order in Massachusetts is possible. The burden is on you to show that there has been a material and substantial change in circumstances and that the proposed change is in the child’s best interest. If you and your ex can agree to the change it will help the process go much smoother and quicker. If you can’t agree, you still have the right to ask the Court for a change.