Bob and Betty have two children: Charlie and Claire. Betty has custody of the children and Bob gets visits with them every other weekend. Their divorce decree states that Bob should provide all the transportation for the visits. When they got divorced, Bob and Betty lived in Des Moines. Now, Betty, Charlie, and Claire have moved to Kansas City. In order to have his visits, Bob now has to drive three hours each way. A great deal of Bob's time with his children is now spent in the car, driving to and from the children's new home. Bob now has to pay a lot more for gas to get to and from their house. Is there anything Bob can do?
Custody orders are issued by a court in which a judge establishes a schedule for separated parents to have parenting time with their children. Custody orders can be part of a divorce decree or a stand-alone custody order. Parents can always agree to give each other extra visitations, but if the parents cannot agree, then they must follow the custody order. This can cause a problem when there has been a big change in one, or both, of the parents' lives and as a result, the old custody order can no longer be followed. This article will discuss when and how a parent can change, or modify, a custody order.
Sometimes when a divorce or custody case first starts, the court will order a "temporary" custody order, which is an order that sets the custody and visitation for the parents while the custody or divorce case is still open. Rarely can a parent modify a temporary custody order. When the custody or divorce case is done, the court will order a final custody order. This article discusses how to modify final, not temporary, custody orders.
When Can I Modify the Order?
Either parent may request that a custody order be changed; however, a judge will only approve a change in certain situations. Most importantly, a parent requesting a change will need to prove to the court that there has been a substantial and material change in circumstances that occurred after the original custody order was issued, and that this change is permanent and was not something that the parents or the judge were aware of when the original custody order was issued.
Here are some examples of situations that a judge could consider to be a big enough change to justify modifying a custody order:
- One parent started living with a person who uses drugs.
- The custody order states that the parents will meet halfway between their homes to exchange the children. One parent moved to another state, drastically increasing the distance between the two parents' homes.
- A parent is sent overseas for military duty.
- One parent becomes homeless and no longer has suitable housing for the children.
- A child develops severe health problems and needs constant care.
- A parent goes to jail or prison.
- A parent's new significant other is abusive to the child.
Here are some situations that a judge may not consider to be a big enough change to justify modifying a custody order:
- A parent falls behind on child support, but still wants to be involved with the child.
- A parent has a new boyfriend or girlfriend.
- A parent moves to a new home that is not very far from his or her previous home.
- A parent temporarily moves.
- A parent makes less money than they did when the court order was issued.
Additionally, it is more difficult if a parent wants to modify custody to change who has physical custody of the child. In this situation, the parent asking to be named primary physical caretaker by the court must show an ability to care for the child's needs which is superior compared to what the other parent can do. If both parents are equally able to care for the children and it is in the children's best interest for the custody to remain the same, then custody should not be changed.
The documents that need to be filed in order to modify a custody order can be complicated. There could be issues that a non-lawyer would miss if they tried to file the documents without an attorney. It is best to have an attorney help you with a modification to ensure that you are filing the right documents in the right court and are protecting your interests.
To ask the court to modify the custody order, the parent will need to file an Application to Modify an Order. Jurisdiction to decide custody, meaning where or in what state a custody modification action can be brought, can be tricky. A simple rule is that the state where the first custody action took place continues to have jurisdiction so long as one parent still lives there. For example, if the order is from Iowa and one parent still lives in Iowa, the Application should be filed in the Iowa court that issued the original order. If, however, the original order is from another state and both parents have moved out of that state, that state likely does not have jurisdiction to modify the order.
In the Application to Modify an Order, the parent should explain when the court issued the custody order, what court (state and county) issued the order, and what custody and visitation was issued in the custody order. The parent should also explain why they believe the court should now change the custody order and what changes the parent would like the court to make. At the end of the Application the parent should ask that the court set a hearing on the Application.
All Iowa counties now use electronic filing of court documents. The electronic filing system is called “EDMS.” It allows people to file online without going to the courthouse. The system notifies parties by email when the judge enters an order or the other party files some document. You can ask to be exempted from electronic filing by filing a motion with the court.
There is a filing fee that must be paid upon the filing of the Application. The parent also must pay a service fee for having the sheriff serve the Application to Modify the custody order upon the other parent. If the parent cannot afford to pay the fees due to financial circumstances, the court can be asked to postpone payment of the fees. The parent must provide specific details on his or her income and expenses. A person who asks to defer payment can file without paying a fee. The fee is still due. It will be assessed to one of the parents when the court makes a decision on the case.
After the Application is filed, many courts require mediation or attendance at a children-in-the-middle class before a hearing will be scheduled. At the hearing, both parents will have a chance to explain why the custody order should or should not be modified. Both parents should bring with them to the hearing any witnesses and evidence that they have that supports their opinion about whether custody should change. This could include proof of the parent's place of residence, a Department of Health and Human Services report about child abuse or neglect, documents from a parent's criminal court case showing drug charges, or witnesses who will testify about child abuse or drug use. Remember that judges are often reluctant to modify a custody order. It is important that the parent trying to modify an order is fully prepared for the modification hearing. It is recommended that both parents retain attorneys for help with the modification hearing.
While Iowa Legal Aid can occasionally represent a parent in a modification action, we receive more requests for help than we can accommodate. If an Iowa Legal Aid attorney cannot represent a parent in a modification action, Iowa Legal Aid can often give advice about modification to the parent.
Iowa Legal Aid provides help to low-income Iowans.
To apply for help from Iowa Legal Aid:
- Call 800-532-1275.
- Iowans age 60 and over, call 800-992-8161.
- Apply online at iowalegalaid.org
If Iowa Legal Aid cannot help, look for an attorney on “Find A Lawyer” on the Iowa State Bar Association website iowabar.org. A private attorney there can talk with you for a fee of $25 for 30 minutes of legal advice.
As you read this information, remember this article is not a substitute for legal advice.