by: Philip C. Sheward December 2013
I recently observed a conversation on Facebook that got started because a dad had heard that the mother of their children was going to take him to court to try and get custody of his kids. Setting aside whether or not it is a good idea to discuss matters like that on a public form, (and it's usually not a good idea) I couldn't help but notice some of the misinformed advice that this father was receiving. Be there no mistake, his friends meant well. They were trying to encourage him, to tell him he had nothing to worry about, and generally just trying to make him feel better. That said, here are some examples of the "encouraging words" I saw:
- It's impossible to reverse custody unless the custodial parent is unfit!
- There has to be a good reason that proves you are incapable of parenting!
- If you have primary physical custody, she will have to prove you're unfit!
I call this the "Unfit Myth" and the purpose of this article is to debunk this notion. The truth is, there is no component, legally speaking, to the prospect of modifying custody, which requires one parent to show that the other parent is unfit or otherwise incapable of parenting.
Rather, if a non-custodial parent wishes to ask a court to modify custody they must prove to the court that modifying custody is in the child's best interest and that there has been a substantial change of circumstances since the last custody order. Factors that a court may consider in determining whether this burden has been met include:
- The age and sex of the child.
- The wishes of the child's parent or parents.
- The wishes of the child, with more consideration given to the child's wishes if the child is at least fourteen (14) years of age.
- The interaction and relationship between the child and their parents, siblings, or other significant people.
- The child's adjustment to their home, school, or community.
- The mental and physical health of all individuals involved.
- Evidence of domestic violence.
- Evidence that the child is being cared for by someone other than his or her parents (known as a de facto custodian.)
Custody modification proceedings can be, and usually are, a life changing event for any child. As a result, it is vital to know what your options are and what the law states no matter if you are the one trying to obtain custody or the parent trying to defeat a modification request. If you have questions about custody modification, contact our attorneys at (317) 462-3455, if for no other reason then to sort out fact from fiction.