When married couples separate or get divorced, there can be huge challenges deciding what to do about shared children. The vast majority of divorcing couples wants the best for their children, but they may disagree how that can be achieved.
- Should the two spouses share the physical arrangements between them after they separate? How can that happen if they don’t live close to each other or have developed other relationships?
- If only one of the spouses does most of the day to day caring, who is going to pay for the welfare and upbringing of the children? Does the other spouse, the one who doesn’t get to do most of the caring, have rights to visit the children and take them on vacation?
- Do both spouses have an equal right to determine how the children should be brought up, such as how they should be educated, or whether they should be introduced to a religious faith?
In this article, the emphasis will be on what happens after a divorce has taken place and the original arrangements for child custody are questioned by one or both ex spouses. In Massachusetts, like most other U.S. states, there are procedures in force that regulate what two ex spouses can do if one or both wish to modify a child custody agreement or court order.
Child custody arrangement agreements and court orders before a divorce
Every divorcing or separating couple is different. Thankfully, there are spouses who can agree about what to do after a divorce. They can work out what to do about their shared assets and family home, if they have one. They can also work out a comprehensive agreement about how dependent children should be cared for after the divorce has been finalized.
The separation agreement may be entirely worked out by the two spouses themselves or they may get help from counselors or divorce attorneys. This is the preferred solution as far as Probate and Family courts are concerned. Courts will still want to see the separation agreement and the arrangements for child custody and decide whether they seem suitable. When it comes to child custody arrangements in a separation agreement, the court will be looking to see whether the arrangements are in the best interests of the children.
But what happens if a couple cannot decide about what to do about their children, despite help from marriage and divorce counselors, friends, family and attorneys? One or both may then petition the court to make a decision on their behalf. If this is what happens, the court will want to carefully decide the future of the children and arrangements for their custody and welfare. When they make their final decision, this will be in the form of a court order. The court will expect both spouses to keep to the decisions made in the court order and if one or the other spouse does not, then the other spouse can ask the court to take action.
Modifications to child custody arrangements after divorce
It would be unrealistic to assume that whatever was decided on behalf of the children of divorcing spouses to remain completely unchanged over time. There are many reasons why things change and one or both spouses may decide to seek modifications to child custody decisions made in a separation agreement or a child custody order. Some of these include:
- the children grow up and are no longer considered minors;
- one or both spouses no longer live in the same place as they did immediately after the divorce, making any shared custody arrangements and / or visitation rights practically more difficult or impossible to continue;
- one or the other of the spouses has a new job, has remarried or come into an inheritance all of which can change prior arrangements for child custody and child support payments;
- one or the other spouse has routinely disregarded the original decisions about child custody made in the agreement or court order;
- one or the other spouses no longer is able to continue looking after the children in their best interests, perhaps due to alcoholism, drug addiction or mental illness;
- the existing arrangements no longer provide a safe environment for the children.
How a court decides whether a modification to child custody arrangements should go ahead
In Massachusetts, courts will need to confirm that two criteria are present before they consider a modification to existing child custody arrangements. These are:
- the changes proposed by one or both parents are “in the best interests of the children”; and
- there has been a “material and substantial change in the circumstances of the parties.”
The procedure involved in petitioning for a child custody modification
Like the original divorce agreement, the best solution is that the two parents, ex spouses, come to a workable agreement between themselves about how to modify an existing arrangement for their children. Both can then submit a joint petition to the court requesting a modification. If only one of the two spouses thinks that the existing arrangements are no longer viable but the other spouse disagrees or cannot be contacted, then this spouse can petition the court themselves.
There are various possible arrangements for where the petition should be filed. If both spouses still live in the same county as they did when the divorce took place, then the petition to modify the child custody agreement or order should be to the county court.
If the two parents no longer live in the same county, but are still living somewhere in Massachusetts, then the petition should be made to the court in the county where the divorce was heard.
If one of the two parents lives in another state, then the petition should be made to a court in the state where the children spent the preceding six months, determined as the children’s “home state”.
A divorce attorney can help with your child custody modification petition
Making arrangements for shared children during and after a divorce should not be taken lightly. Whether the two parents both agree that an agreement or court order is no longer working in their children’s best interests or just one of the ex spouses wants a modification, it can help to get professional legal help. This is when it pays to contact an experienced divorce attorney.
For more information, visit our website or contact us for a free initial legal consultation today.