Family Law Flashcards
Summary
Generally, reconsideration or modification of a child-custody order is discouraged close in time to the original order. Here, just two months have elapsed since the trial court entered its original order. Nonetheless, modification of a child-custody order is authorized if there has been a substantial change of circumstances that affects the child’s welfare. Here, there are no facts warranting that conclusion. Harvey’s post-divorce, nonmarital cohabitation might, in some states, constitute a substantial change of circumstances allowing modification of custody. However, Wanda did not show that the cohabitation negatively affected the daughter’s welfare, in particular the daughter’s safety or her relationship with her parents. Indeed, the daughter stated that “Patrice is fine” and did not attribute her feelings of anger to Harvey’s cohabitation with Patrice. Also, the daughter did not express a preference for a change in her custody.
Even assuming that the facts authorize the trial court to consider modification of its original child-custody order, the trial court should not order that Harvey and Wanda have joint physical and legal custody, as that would not be in the daughter’s best interest. Harvey and Wanda have never agreed to joint physical and legal custody, are still bitter toward each other even after the divorce, and are unlikely to cooperate regarding parental decision-making and day-to-day parenting matters. Furthermore, the facts do not support a conclusion that the daughter is seriously unhappy or endangered in Harvey’s home or that she prefers to live with Wanda.
Are the facts legally sufficient to authorize the trial court to consider modification of the original custody order?
The facts are legally insufficient to authorize a modification of the original custody order. Wanda failed to establish a substantial change of circumstances since the original order was entered, and the evidence did not show that Patrice’s move into Harvey’s home endangered or even affected the daughter’s well-being. Further, Wanda petitioned for modification only two months after entry of the original custody order, which is strongly disfavored.
(a) Requirement of change of circumstances (50% total weight—cohabitation & custody)
Custody orders are modifiable, but modification is impermissible unless there has been a substantial, or material, change in circumstances since the initial order was entered. John Gregory, et al. Understanding Family Law § 11.06[A] (4th ed. 2013). Further, some states require that the change in circumstances be unforeseen or unforeseeable. For example, the Uniform Marriage and Divorce Act (UMDA), 9A U.L.A. 211 § 409(b) (1979) requires that there be “facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree.”
Harvey’s nonmarital cohabitation (25%)
In some states, appellate courts have held that a custodial parent’s post-decree nonmarital cohabitation represents a change of circumstances sufficient to warrant a modification hearing. See Word v. Remick, 58 S.W.3d 422, 427 (Ark. Ct. App. 2001); Todd v. Casciano, 569 S.E.2d 566, 570 (Ga. Ct. App. 2002); Masters v. Masters, 52 So. 3d 1279 (Miss. Ct. App. 2011). In these states, an appellate court would likely find that the trial court did not err in hearing evidence on modification. But, even in states that authorize a hearing in these circumstances, modification is typically disallowed unless the petitioner shows that the nonmarital cohabitation has an adverse impact on the child. See UMDA § 402 (“The court shall not consider conduct of a proposed custodian that does not affect his relationship to the child.”); Pingree v. Cossette, 424 P.3d 371, 384 (Alaska 2018) (“courts may properly consider the sexual conduct of a parent when there is ‘evidence of an adverse effect to the parent-child relationship’”); Cooper v. Coulter, 783 S.E. 350, 352–53 (Ga. Ct. App. 2016) (same); Denham v. Denham, 351 So. 3d 954, 963 (Miss. 2022). Here, Wanda presented no evidence at the hearing to show an adverse impact on the daughter due to Harvey’s cohabitation with Patrice. Although the daughter indicated that she was angry because her parents divorced, there is no evidence that her feelings were attributable to Patrice’s move into Harvey’s home or placed her at risk of harm. In fact, to the contrary the daughter testified that Patrice was “fine.”
Daughter’s custody preference (25%)
A child’s custody preference is relevant to a custody determination, and a change in a child’s custody preference can constitute a substantial change of circumstance warranting modification of custody. See In re Marriage of Sutton, 16 N.E.3d 481 (Ind. Ct. App. 2014). Here, the daughter originally indicated that she blamed her mother for the divorce and wanted to live with her father. At the modification hearing, she testified that she missed her mother and would not mind seeing her more. The daughter’s testimony does not clearly indicate any alteration of her custody preference; she did not testify that she wanted to live with Wanda or that she did not want to live with Harvey. Nor did the evidence show that her feelings of anger were attributable to living with Harvey instead of facing her parents’ divorce. Again, she testified that Patrice was “fine.” For these reasons, it is highly unlikely that the daughter’s testimony would be sufficient to qualify as a substantial change of circumstance permitting reconsideration of custody. See, e.g., Dunlap v. Dunlap, 455 P.3d 1 (OK Civ. App. 2019) (modification of custody justified where the preference is explained by the child and good reasons for the preference are disclosed and there is a permanent, material, and substantial change in circumstances); Butland v. Butland, 1996 WL 362038 (Ohio Ct. App. June 27, 1996) (whether child’s views qualify as a substantial change of circumstance depends upon the “depth, sincerity, and the extent they reflect changed circumstances within the parent-child relationship or relationship between the parties”).
[NOTE: The daughter’s preference is an important factor a court should consider either in the change of circumstances analysis and/or in the decision whether to change custody.]
Impact of timing of request for modification (5%)
Most states also disfavor modification when sought shortly after a custody decree has been entered; the principle of res judicata and the belief that children’s interests are served by stable custody arrangements both contribute to this view. See, e.g., Graner v. Graner, 738 N.W.2d 9, 17 (N.D. 2007) (“The purpose of the two-year period limiting modification is to provide a moratorium and spare children the painful, disruptive, and destabilizing effects of repeat custody litigation.”) Thus, if a modification petition is filed within two years of the original decree, UMDA § 409(a) authorizes a modification hearing only if the evidence suggests “there is reason to believe that the child’s present environment may endanger seriously his physical, mental, moral or emotional heath.” In states that do not have statutory standards restricting early modification, case law typically disfavors it unless the evidence shows that the child is at risk. Gregory et al., supra.
Here, Wanda filed her petition just two months after entry of the original order and, as earlier discussed, the evidence did not show any risk of harm to the daughter since the original custody order. Thus, because the modification was filed so soon, most courts would find that the trial court had no authority to modify the original order.
Assuming that the facts authorized modification, should the trial court modify the original custody award to grant Harvey and Wanda joint physical and legal custody of their daughter? Rule
Assuming that the court has authority to modify its custody order, because the parents do not agree to joint physical and legal custody and have a high-conflict relationship, the trial court should not order that Harvey and Wanda have joint physical and legal custody as that order would not be in the daughter’s best interest.
Even if there is a substantial, or material, change in circumstances allowing the possibility of modification of an original custody order, a court should not modify a custody order unless the change serves the child’s best interest. See UMDA § 409(b). “Joint custody is not appropriate and not in the best interest of the children when parents are unable to make shared decisions concerning the welfare of their children. The parents’ ability and willingness to communicate and cooperate is crucial in considering whether joint legal custody is proper.”
Most courts will not impose joint custody on unwilling parents because it is generally understood that requiring hostile parents to share custody can be harmful to children. Even in states that do permit the imposition of joint custody over a parental objection, a court may not order joint custody unless it finds that this arrangement is in the child’s best interest. In making this assessment, the court should consider the extent of parental conflict and the likelihood of achieving both cooperation between the parents and a stable living situation for the child. See Annotation, Propriety of Awarding Joint Custody of Children, 17 A.L.R. 4th 1013 (1982 & Supp.).
Assuming that the facts authorized modification, should the trial court modify the original custody award to grant Harvey and Wanda joint physical and legal custody of their daughter? Application
Here, Harvey and Wanda’s divorce and custody litigation was acrimonious, and since the marriage ended, they have continued to be hostile to each other. Their high-conflict relationship remains likely to be harmful to their daughter. Further, neither parent requested modification to joint physical and legal custody, indicating that they are unlikely to be willing to make decisions collectively. These facts weigh against a trial court modifying the initial order to provide for joint physical and legal custody.
Additionally, a joint custody order might adversely affect the teenage daughter’s living situation as it would be disruptive to her life, likely causing her to lack consistency in her upbringing, her schooling, and her friendships. Here, these negatives would not be counterbalanced because the evidence is that the daughter and Patrice are “fine”; the daughter has not indicated any reluctance to living in the home with Patrice and has not expressed a firm preference to live with her mother instead of her father. Although the daughter testified that she misses her mother, her needs in this respect will be met because pursuant to the original order, Wanda will continue to have liberal, unsupervised visitation with her daughter.
