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July 06, 2017

Custody Modification - When and How

Sometimes, after an initial custody decision is made by a court a party feels that things are not working and a change to the court order is needed.  A  formal custody modification is a court-approved change in a child’s living arrangements. This often means one parent either gets more or less parenting time with the child than what s/he was previously granted by the court. Normally, a custody modification can be requested when:

  1. 1. there is a substantial change in the circumstances surrounding the child or either parent, and  
  2. 2. altering the custody arrangement becomes necessary to serve the best interests of the child. 

Although there is no single definition of what a “substantial change in circumstance” is, West Virginia law has outlined some situations that do not reach this threshold for means of modifying custody. For instance, the Court will generally not consider, a parent’s loss of employment, remarriage or cohabitation with someone else, or reasonable caretaking decision (like putting the child in daycare) a substantial change in circumstance.  On the other side, there are certain activities which the law holds to clearly constitute a substantial change in circumstances.  Such as when a parent has abused, neglected, abandoned, or committed domestic violence against the child; repeatedly made false reports of domestic violence or child abuse; and/or persistently interfered with the other parent’s access to the child without a justifying reason. 

Other ways a custody modification can be brought about are when:

  • • the parents agree between themselves to change their parenting plan and such change would not be harmful to the child, or; 
  • • the amended parenting plan reflects the actual parenting arrangements the child has been receiving care under, usually for at least six months. 

To modify a custody arrangement so that it is legally recognizable, you will need to submit a written “Petition for Modification” of custody to the court. Generally, you will do this in the Circuit Clerk’s office in the county where your case was originally heard. The Petition for Modification is available here: http://www.courtswv.gov/lower-courts/family-forms/index-family-forms.html along with an instruction packet on how to fill out and file the form.  It should be noted that this form is the same used to request a modification of child support, and that both custody and support can be modified at the same time, however this blog post focuses only on modifying custody.

More information can be found in this website's Self-Help Library. Different cases have different circumstances and complications. The information presented here and in our website's Self-Help Library is to help you understand the issues that may come up in a custody modification case and is not intended to address every possible situation.

This post was prepared with the assistance of Darian Spurlock, WVU College of Law Summer Fellow.

Disclaimer: This is general legal information. For more guidance about your particular situation, please contact Legal Aid or talk to a lawyer.