We previously wrote about changes to custody in our article: Custody is Gone in 2016. What else is changing?
In a word: lots. One change in law may get less fanfare but actually have a greater impact on cases. For three reasons, we believe it’s going to be easier to modify a prior parenting/custody order. If you’re like the Teen Moms of MTV, then this would mean that your ex is going to have an easier time taking you back to court.
One big reason is because there will be a lesser amount of evidence necessary for being able to change a parenting or custody order. Right now and previously, you had to prove a change in circumstances has occurred since the time of the last custody order by clear and convincing evidence. Soon, you’ll have to prove that change in circumstances by only by a preponderance of evidence. Okay, maybe that doesn’t sound like a big deal to many people, but understand that legally, it’s a big deal. What does the difference mean?
Bear with us: the “clear and convincing” legal standard means that the evidence being presented must be “highly” and substantially more probable to be true rather than untrue. Also, the judge needs to have a firm conviction or belief in its factuality.
Compare: a preponderance means that the evidence is more likely than not true – 51%. Preponderance is much easier to prove. Therefore, to modify a custody order, the change in circumstances – and the case itself – is much easier to prove. We’re not allowed to assign percentages to standards of proof, but just for the sake of imagining this concept, say it’s like going from 71% to 51% in terms of difficulty.
There’s another phrase in the statute that lawyers may make use of in the new statute. The case for modifying custody doesn’t have to look only at facts that have happened since the last order; the language actually says to look at “facts that have arisen since the entry of the existing [order] or that were not anticipated.” Hmm, what wasn’t anticipated? It’s not defined further, and that means it’s at least open to interpretation and outside-the-box argument.
There’s one more way to modify an order, it doesn’t require proving a chance in circumstances at all, and it feels awfully broad. An old custody order can be changed if it’s in the child’s best interests* (*by the way, the statute on best interests has CHANGED too, and our summary is here at this link: New Caretaking Functions and Best Interest Factors ), and one of these four applies:
1. The modification reflects the actual arrangement under which the child has been receiving care, without parental objection, for the 6 months preceding the filing of the petition for modification, provided that the arrangement is not the result of a parent’s acquiescence resulting from circumstances that negated the parent’s ability to give meaningful consent;
2. The modification constitutes a minor modification in the parenting plan;
3. The modification is necessary to modify an agreed parenting plan that the court would not have ordered or approved if the court had been aware of the circumstances at the time of the order or approval; or
4. The parties agree to the modification.
Let’s pick 2 of these to discuss. In #1, a de facto (as in: not court-ordered or listed on paper, but instead simply happening informally) switch to the other household could arguably open the door to a modification. In reality, this happens from time to time: maybe the primary parent has life changes because of a new spouse or new family demands, physical stresses, job changes, or a geographic move, and the child(ren) gravitates more toward the other parent’s house. Meanwhile, the custody order stays the same. Now, when the other parent wants it changed, it seems that a legal change now will be more likely to follow the reality. Because child support is often tied to the legal change, this could open an attractive door for certain people.
Let’s also look at #3. Attorneys don’t like to hang our hats on just one way to win a case; often we like a few options to obtain the desired result. Now, requests to change a parenting order could add in that the court would not have ordered the parenting plan originally IF it had been aware of what really was occurring. This seems a convenient argument – and one that leaves open to the judge the interpretation of what should have been done the first time. Proactive judges who want to fix family situations may readily use this hook, if it’s presented to them. Legally, it also means the scope of a case is broadened to look at extra facts about what occurred when the last order was completed. Ordinarily, you can’t talk about facts that happened at the time of, or before, the last court order, because they’re already decided- that’s what the order did. Now, arguably by pleading this additional basis, litigants can bring up the past all over again, and perhaps use it successfully in reopening the case as a whole.
If you’re looking to reopen your past custody order, in 2016 we believe there will be more ways to do it and an easier route to making the case. Depending on which side you find yourself on, this may be good news or bad news – like the Teen Moms in the pictures with this article, both of whom went back to court this past year.