How to Modify a Custody Order

March 12th, 2024
Posted By
Sarah M. Litowich
Child custody concept. Wooden blocks with text and woman, man and child figurine - modify custody order
Custody orders aren’t necessarily set in stone. Oregon law recognizes that there may be situations in which modifying a child custody order may be in the best interests of the child. However, it’s important to understand that once an order is in effect, neither parent can simply make changes on their own accord — they must either agree to the modification or a judge must determine the outcome.

When Can a Custody Order Be Modified?

As children grow older, their needs and family circumstances may change. This means that a custody order that was put into effect when the child was three years old might not address their best interests when they are twelve. In such cases, parents might agree that the existing child custody order should be changed. If they do not consent, a court will determine whether a modification is appropriate. A court will only permit a modification to an existing custody arrangement in certain situations. For instance, the petitioning parent is required to show that there has been an unanticipated change in circumstances that affects the other parent’s ability to properly care for the child. The requested modification must also be in the best interests of the child — and the benefit of the custody modification must outweigh any negative effects of the instability caused by the change in custody. Importantly, the best interests factor applied by courts in custody modification matters uses the same factors that were considered in the original custody decision. These factors are set forth by statute. They consider things such as the emotional ties between the child and their family members, any abuse by a parent, and the attitude of the parents toward the child. In deciding modification matters, a judge will also consider each parent’s willingness to foster a relationship between the child and their other parent.

Reasons to Modify a Custody Order

Whether circumstances have substantially changed in the family or the current custody arrangement does not meet the child’s needs, there can be many reasons to modify a custody order. Significantly, a custody order can be modified any time up until the child reaches the legal age of majority at 18. Reasons to modify a custody order include the following:
  • Parental relocation
  • A parent’s refusal to cooperate with the existing order
  • Neglect or abuse by a parent
  • Endangerment of the child by the custodial parent
  • A parent’s substance abuse issues impact their ability to care for the child
  • A parent’s illness or health issue affects their ability to care for the child
Situations such as remarriage of a parent or hostility between parents, absent other factors, would likely not be enough to support a change in custody.

How to Modify a Child Custody Order

Modifying a child custody order doesn’t always have to be contentious. Parents can work together outside of court or use mediation to help them reach an agreement regarding a custody modification. In mediation, a neutral third-party can assist parents with facilitating communication and voicing their concerns in a healthy manner. Once parents decide on a custody modification that works best for their child, a written agreement can be submitted to the court as a “Stipulation to Modify.” Upon being signed by the judge, the stipulation becomes an enforceable order. If parents are unable to reach a custody agreement in mediation or between themselves, the parent making the request can file a motion and affidavit with the court citing the facts that establish a substantial change in circumstances. Generally, the request for the child custody modification should be filed in the court that entered the original judgment. Although it isn’t necessary for the other parent to file a response to the motion, they can ask the court to dismiss or grant the motion. The court will schedule a hearing to decide the outcome of the case if the other party files a written response. It’s essential to note that modifying custody is different from modifying parenting time — a parent can request that a court modify parenting time without having to show that there has been a substantial and unanticipated change in circumstances. Instead, the petitioning parent would only need to establish that the change in parenting time is in the child’s best interests. Typically, a parent would make a request to modify parenting time if a change would make sense due to the schedules of the parents or the child; the existing plan has not been followed for a long period of time; or the plan does not meet the child’s needs.

Contact an Experienced Oregon Child Custody Attorney

It may be necessary to modify a custody order if it no longer meets your child’s needs. A skillful family law attorney can best advise you and help you navigate the process. Based in Salem, Litowich Law provides compassionate counsel and reliable representation for a wide variety of family law matters, including those involving child custody modifications and parenting time throughout Oregon. We welcome you to contact us for a consultation.
Categories: Child Custody