Child custody orders are often issued when children are infants. Many changes are certain to occur from the time of infancy to the age of majority. Indeed, while the child will undoubtedly go through major changes, the parents will likely experience vast financial, emotional and physical changes during that extended period. Keeping that in mind, it should not be surprising when one or both parents desire to modify a custody order after significant amount of time has passed. Even less surprising is that the parents of the minor children will often disagree about the terms of a proposed modification.
The court’s primary concern in every proceeding to modify a child custody order is the best interest of the child. The court will consider all relevant factors in determining the best interest of the child and may consider:
1. The love, affection, and other emotional ties between each party and the child
2. The capacity and disposition of each party to give the child, love, affection and spiritual guidance and to continue the education and rearing of the child.
3. The capacity to provide the child with food, clothing, medical care, and other materials needs
4. The length of time the child has lived in a stable, adequate environment, and desirability of maintaining continuity of that environment
5. The permanence, as a family unit, of the existing or proposed custodial home or homes.
6. The moral fitness of each party, insofar, as it affects the welfare of the child
7. The mental and physical health of each party
8. The home, school, and community history of the child
9. The reasonable preference of the child, if the court deems the child to be of suffiecient age to express a preference
10. The willingness and ability of each part to facilitate and encourage a close and continuing relationship between the child and the other party
11. The distance between the respective residences of the parties
12. The responsibility for the care and rearing of the child previously exercised by each party.
La.C.C.P. Art. 134.
The standards for modifying a consent custody order and a considered custody order are different.1 In order to modify a consent custody decree, the party that petitions the court to modify the custody order must show that there has been material change in circumstances since the original custody order was rendered and that the proposed modification is in the best interest of the child. In addition to showing that the proposed modification in the the best interest of the child, the party moving to modify a considered custody decree must show that the “the continuation of the present custody is so deleterious to the child as to justify a modification of the custody decree, or of providing clear and convincing evidence that the harm likely to be caused by the change of environment is substantially outweighed by its advantages to the child.” Bergeron v. Bergeron, 492 So.2d 1193 (La 1986).
In other words, it is much more difficult to modify a considered custody decree than a consent decree. This makes sense because when a party petitions the court to modify a “considered custody decree” the party is essentially asking the court to change a decision that the court made after hearing testimony on parental fitness and considering the facts of the case and the law. On the other hand, when a party petitions the court to modify a “consent custody decree” the party is essentially asking the court to modify an agreement between parties that the court has issued as an order.
Disclaimer: The information contained in this article is for general information purposes only. Nothing in this article is or should be considered legal advice. The information in this article is not intended to create an attorney-client relationship, and viewing or receipt of information from this article does not create an attorney-client relationship.