How Can I Change a Custody or Visitation Order

Court Orders of Custody and Visitation lay out the specific rules and schedules that will dictate each parent’s access time with their children. These Orders are signed by the Judge overseeing the custody matter, and have the full force of law behind them, allowing law enforcement officers, when presented with the Order, to enforce the terms. As each Order is extremely important to both parties and carries a legal weight, the process for one party to seek to amend or modify these Orders is carefully detailed in the relevant state laws.

Once an Order is fully executed, meaning signed by the Judge, and is implemented, the methods for modifying the Order are few. First, if the terms of an Order are contrary to either what the parties agreed, or what the Judge indicated in their Decision, either party may submit a Motion to Resettle. A Motion to Resettle allows a party to correct an error or misstatement, typically a result of a clerical error or omission of a vital point in the Order. The Motion to Resettle lays out the error and provides the proposed solution in an effort to amend the Order. Conversely, a Motion to Reargue allows a party to challenge a provision of an Order or a Decision from a Judge, based on an alleged misapprehension of either law or fact on the part of the Judge in the course of making their Decision. A Motion to Reargue asks the judge to reevaluate its Decision based on the proposed issue in the hope that all, or part, of the Decision will change, necessitating a revised Order. Motions to either Reargue or Resettle typically need to be submitted to the Court within thirty (30) days of the date of the Order in question, unless a party can establish good cause for submitting the motion after that period.

Assuming there was no mistake, either in the interpretation of the facts of the case and relevant law or a clerical mistake in the drafting of the Order, an Order of Custody will survive and govern each parent’s time with the children until it is modified by a subsequent Order. In order to file a petition to modify an existing Custody Order, the filing party must be able to demonstrate a substantial change in circumstance. If a party is unable to show that there is  a substantial change in circumstance that would call for either custody or access to be modified, the Court will refuse to review the parties’ custody situation. Substantial changes in circumstance can include a change in either parties’ living situation, an allegation of abuse or neglect, or a claim that the wishes or needs of the children have changed. If a party is able to demonstrate that one, or multiple, of these changes exist, the Court will consider each party’s position, before arriving at a new, subsequent Order, effectively changing the existing Order, in light of the new circumstances.

Absent a mistake in the Order, a misapprehension of the Judge in arriving at the Decision that leads to the Order, or a substantial change in circumstance that would allow one party to file a petition to have the Court reassess the terms of custody and visitation, Orders of Custody will stand and govern the schedule and guidelines for each parent’s access time with their children. While these strict laws are in place to ensure the stability of custody matters, they do not prevent both parties from reaching an arrangement outside of court to deviate from a Custody Order. The methods mentioned above are the ways that one party, absent the consent of the other party, can unilaterally seek Court intervention to modify an Order. If the parties (including the attorney for the children, if one is appointed) are in agreement on a proposed change to the Custody Order, mutual consent will allow the parties to make the agreed change.         

This is not intended to be legal advice; you should contact an attorney regarding your specific situation.