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Can we modify custody after a divorce?

Question: My husband and I split about 5 years ago. At the time, we agreed to fifty/fifty custody and I thought that was the right decision when the kids were young. My ex, however, is very permissive. It was annoying when the kids were little, but now I am beginning to think it could be genuinely harmful for the kids. Can we change custody and if so, what does that involve?

Answer: You don’t state what kind of decisions your ex is making that you think are harmful, so this answer will be generally about changing custody.

In general, courts frown on making custody changes simply for the sake of changing them. Kid’s need stability and an arrangement that is predictable is part of that equation. You state, however, that you are afraid the kids may be in danger, and that is something that the courts take very seriously.

First, you can try talking to you ex and see if he will agree to the kids being with you on a more consistent basis. No one polices your divorce decree, so if he agrees to that, you can simply create a new schedule without involving attorneys or the courts. The caveat is that if he changes his mind at any time—and he can—then the schedule set forth in your decree takes precedence and your ex can revert to that schedule with no notice to you.

If you believe the kids are in imminent danger, you can ask the courts for an ex-parte order granting you an emergency change. Ex-parte orders allow you to skip the advance notice you must give before a court hearing, but you must have very significant evidence for the court to allow such a measure.

If your concerns are more general and your ex will not agree to a modification of your current order, you would be wise to consult an attorney who can handle a motion to amend the current order.

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