Despite the sense of finality perceived and achieved by a divorce and subsequent events, family law is actually a fluid practice, and more often than not, open to review. If an arrangement has been made but is no longer viable due to changed circumstances, you may certainly revisit the agreement with your attorney and make changes. There are steps to follow, depending on the state you live in. Here in New Jersey, it starts with specifying whether a change needs to be made to the child’s legal custody, physical custody or both.
Legal custody refers to the parent or parents who make the major decisions regarding the child’s safety, education, health and welfare. Physical custody, on the other hand, is a matter of with whom the child is actually living. Whoever is requesting the change bears the burden of proving a “change of circumstances”. Since the matter has reached the court, it can be assumed that an agreement was not met between the parents. So, a hearing will be necessary and again, the parent requesting the change must prove that a significant change has happened since the original custody order.
Bear in mind that once the change you desire has become the subject of a court hearing, evidence and testimony will be required to make your case. If, for example, your contention is that the living conditions provided by the custodial parent are no longer safe, both the legal and physical custody of your child can be challenged. At the very least, you may demand that the safety conditions improve. At most, your child may very well be moving back in with you.
There is one special circumstance that warrants mention and that is the “relocation” case. If you announce that you are moving and your ex does not object, go ahead and breathe a sigh of relief. And put it in writing! Should he or she offer resistance, be ready for a legal battle with a whole new level of complexity based on a “simple” change of address. Anyone who has moved can explain why the word “simple” is in quotes. Ask them how they would feel if a custody battle were thrown in the midst. You definitely should employ legal counsel with any matter involving custody agreements but when it comes to relocation cases, it is strongly advised.
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