Modification of the physical custody of a child is one of the more difficult things to do in family court. Although we’ve successfully moved for modification many times, careful consideration is given as to whether the request should be brought in the first place.

When the court deals with physical custody the first time around, the “best interest of the child” standard applies. The judge takes into account 13 factors, such as who has served as the primary caretaker for a child, the stability of the home environment of each parent, and the wishes of the children, if of suitable age and maturity.

But what if several years after the entry of the initial custody order a parent seeks to modify it? It’s a four-step analysis, in a two-part process. In other words, it’s more complicated. Here’s how it works:

In the absence of an agreement among the parties (or integration of the child into the non-custodial parent’s home with the consent of the custodial parent), the court must find:

  1. There has been a substantial change in circumstance since the issuance of the initial custody order;
  2. The modification would serve the best interest of the child;
  3. The present environment endangers the physical or emotional health, or natural development of, the child; and
  4. The benefits associated with the modification outweigh the potential harm to the child.

In practice, the primary focus involves the endangerment element.

Proving “endangerment” is not easy. In the eyes of the court, endangerment takes on the most traditional of definitions. Has the child been physically abused by the other parent? Exposed to drugs, pornography or provided alcohol by the other parent? Has the child’s health been neglected? Have the child’s nutritional needs been ignored? Has the child’s emotional health changed substantially for the worse? Is the child failing in school?

“Endangerment” does not include a child wanting to relocate with the non-custodial parent, exposing a child to a new significant other, a child’s dissatisfaction with the social structure of the custodial parent’s home, or ongoing arguments between a child and the custodial parent. Actual harm to the child must be proven – and that can be tough, especially if the situation does not involve physical abuse (in those cases, we usually seek the opinion of a counselor or psychologist).

Procedurally, the parent wishing to modify custody must schedule a hearing with the court and serve motion papers on the other parent. At that hearing, the court must accept as true the allegations raised by the non-custodial parent. The question for the judge: if accepted as true, do the allegations establish a primae facie (at first glance) case of endangerment?

If the answer is “yes,” the court will usually appoint a Guardian Ad Litem to investigate and set the matter for a follow-up evidentiary hearing (trial). If the answer is “no,” the matter is dismissed.