Paul Horton: Change of Circumstances and Grandparent Custody

The concept of “change of circumstances” is an important on in the context of child custody, but it’s complicated concept in family law. When a person wants to change the court’s custody orders, there has to be a change in circumstances.

The first important question is “Whose circumstances have to have changed?” The answer to that depends on whether the order is a shared parenting decree (two residential parents), joint custody (one parent and one non-parent) or whether a person (or persons) have legal custody (aka residential parent or sole custody). In a nutshell, the question is “Shared Parenting, Joint Custody or Sole Custody?”

When a person has sole custody of a child (aka “legal custody” or sole residential parent), then the change of circumstances must be a change in the circumstances of the child or legal custodian. It does not matter if the parent who has visitation only, (or has no visitation but simply retains his or her residual parental rights) has changed his or her circumstances, even if his or her circumstances have changed substantially.

In Alexander v. Alexander, the court of appeals for found that the trial court did not abuse it’s discretion when it overruled the Mother’s Motion to Change Allocation of Parental Rights and Responsibilities regarding her three children. The children were in the custody of their paternal grandmother as a result of the agreement of the Mother and Father during their divorce. The Mother had visitation (parenting time).

During the trial on the Mother’s Motion to Reallocate, Mother testified that she had been working for some time to make a more stable home for the children. Among other things, Mother testified that she was employed and had lived in her apartment for a year and a half. The trial court found that the change of circumstances must have occurred “in the circumstances of the child, the child’s residential parent, or either of the parents subject to a shared parenting decree“. In this case, the changes were in the Mother’s circumstances. In addition, the trial court found that the children have become more stable in the grandparents’ home, and so the “harm of a change in environment for the children outweighs any advantages that may have now arisen to justify a change.”

Even if there HAS been a change in circumstances of the RIGHT person, the court should not change custody unless the change is in the child’s best interest AND one of the following is true:

(i) The residential parent agrees to a change in the residential parent or both parents under a shared parenting decree agree to a change in the designation of residential parent.

(ii) The child, with the consent of the residential parent or of both parents under a shared parenting decree, has been integrated into the family of the person seeking to become the residential parent.

(iii) The harm likely to be caused by a change of environment is outweighed by the advantages of the change of environment to the child.

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