It is common for parents to settle issues of custody and access of children while the children are relatively young and then later decide that the arrangements later do not suit the children’s needs. Decisions related to children, including custody and access, will always be made in the children’s best interests. As such, if an arrangement, even a final one, is no longer in the children’s best interests, it may be changed.
A change may be necessary for many different types of reasons. For example, when the original arrangements were made, the child(ren) were young and their needs were significantly different than they currently are. Another reason for a change may be that the parents have moved and the parenting schedule is no longer feasible having regard to the distance that the parties need to travel and the child(ren)’s school schedule. It also may be that a parent who once had custody is no longer exercising that duty in a manner that is in the best interests of the chid(ren). This may mean that they are prioritizing their own needs or interests over those of the chil(ren), including actively alienating the children from the other parent. Yet another reason to change the custody and access arrangements may be that the child(ren) are now of an age where they have voiced their opinion as to where they want to live.
The parents of a child may agree that the custody and access arrangements may no longer suit the child(ren). If this is the case, the parents may be able to agree on a new arrangement through negotiations or mediation. If so, the parents will enter into an amending agreement setting out the new arrangements. As with all domestic contracts, the amending agreement must be in writing. It also must be signed by the parties and witnessed. If there is a prior final order addressing the custody and access arrangements for the child(ren), then following an agreement, the parties will need to file a consent motion to change and file it with the court. This will allow the court to issue a new order reflecting the changed custody and access arrangements.
If the parents do not agree that a change to the custody and access arrangements is in the child(ren)’s best interests, then one parent will have to initiate a proceeding called a motion to change. This proceeding will have to be initiated in the same court that the original final order was issued. To have the original final order changed, the moving party will have to first show that there has been a material change in circumstances affecting the best interests of the child(ren). If a parent is successful in showing a material change in circumstances affecting the best interests of the child(ren), then that parent will have to provide evidence supporting that a change in the custody and access arrangements is in the best interests of the child(ren). Changing a custody and access arrangement is difficult and important procedure. If you are seeking to change your custody and access arrangement, it is important to seek legal advice early on in the procedure.